Maddox v. Yates, et al.

Filing 15

FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Gary S. Austin on 9/9/2009, Recommending that this 1 Action Proceed Only Against Defendants Battle, Ladd, and Vang on Plaintiff's Eighth Amendment Excessive Force Claims, and All Other Claims and Defendants be Dismissed. Matter referred to Judge Wanger. (Objections to F&R due by 10/13/2009) (Figueroa, O)

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O n September 4, 2009, Plaintiff filed written notice identifying the Doe defendant as Sergeant Ladd. (Doc. 13.) I n an order filed concurrently with this order, the Clerk was directed to replace the Doe defendant in this action with d e f e n d a n t Sergeant Ladd.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID MADDOX, Plaintiff, vs. JAMES A. YATES, et al.,

1:07-cv-01227-OWW-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS BATTLE, LADD, AND VANG ON PLAINTIFF'S EIGHTH AMENDMENT EXCESSIVE FORCE CLAIMS, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 30 DAYS /

Defendants.

Plaintiff David Maddox ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the original complaint filed by Plaintiff on August 23, 2007. (Doc. 1.) The complaint names James A. Yates (Warden), Sergeant John Doe, Correctional Officer ("C/O") A. Battle, and C/O C. Vang as defendants, and alleges claims for conspiracy, violation of Plaintiff's rights to Due Process, and excessive force under the Eighth Amendment.1 The Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found that it states cognizable claims for relief under section 1983 against defendants Battle, Doe, and Vang only, for

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excessive force under the Eighth Amendment. On August 6, 2009, Plaintiff was given leave to either file a first amended complaint, or in the alternative, to notify the Court that he does not wish to file a first amended complaint and instead wishes to proceed only on the claims identified by the Court as viable/cognizable in the Court's order. (Doc. 12.) On September 4, 2009, Plaintiff filed written notice to the Court that he does not wish to file a first amended complaint and only wishes to proceed on the claims found cognizable by the Court. (Doc. 13.) Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed only against defendants C/O A. Battle, Sergeant Ladd, and C/O C. Vang, for excessive force in violation of the Eighth Amendment; 2. 3. All remaining claims and defendants be dismissed from this action; Defendant James A. Yates be dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted against him; and 4. Plaintiff's claims for conspiracy and violation of Due Process be dismissed from this action based on Plaintiff's failure to state a claim upon which relief may be granted under section 1983. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: 6i0kij

September 9, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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