Thompson v. The State of California et al

Filing 31

FINDINGS and RECOMMENDATIONS Recommending That This Action Proceed Only Against Defendants Tucker, Green, Lee, Hernandez, Rincon, Deathridge, Huckabay, Thompson, and Melendez, and All Other Claims and Defendants be Dismissed, re 25 Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 4/19/11. Objections, If Any, Due In 30 Days. Referred to Judge O'Neill (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAHN G. THOMPSON,

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1:07-cv-01299-LJO-GSA-PC

Plaintiff,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANTS
TUCKER, GREEN, LEE, HERNANDEZ,
RINCON, DEATHRIDGE, HUCKABAY,
THOMPSON, AND MELENDEZ, AND
ALL OTHER CLAIMS AND DEFENDANTS BE
DISMISSED

vs.
STATE OF CALIFORNIA, et al.,

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Defendants.
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OBJECTIONS, IF ANY, DUE IN 30 DAYS
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Rahn G. Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the Second Amended

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Complaint filed by Plaintiff on November 10, 2009. (Doc. 25.) The Second Amended Complaint

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names defendants Sergeant (“Sgt.”) N. Green, Sgt. D. Huckabay, RN Ms. Davis, Med Tech Mr.

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Chapman, and Correctional Officers (“C/O”s) W. Tucker, D. Thompson, J. Melendez, M. Hernandez,

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M. E. Rincon, T. Lee, Deathridge, and H. Martinez, and alleges claims for adverse conditions of

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confinement, failure to protect, excessive force, and retaliation.

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The Court screened Plaintiff’s Second Amended Complaint pursuant to 28 U.S.C. § 1915A and

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found that it states cognizable claims for relief under section 1983 against defendant Tucker for

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subjecting Plaintiff to adverse conditions of confinement; against defendants Tucker, Green, Lee,
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Rincon, Hernandez, Deathridge, and Huckabay for failure to protect Plaintiff; against defendants Tucker,

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Green, and Huckabay for retaliation; and against defendants Tucker, Thompson, and Melendez for using

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excessive force against Plaintiff. On March 24, 2011, Plaintiff was given leave to either file a Third

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Amended Complaint, or in the alternative, to notify the Court that he does not wish to file a Third

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Amended Complaint and instead wishes to proceed only on the claims identified by the Court as

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viable/cognizable in the Court’s order. (Doc. 27.) On April 18, 2011, Plaintiff filed written notice to

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the Court that he wishes to proceed only on the claims found cognizable by the Court. (Doc. 29.)

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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This action proceed against defendant Tucker for subjecting Plaintiff to adverse

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conditions of confinement; against defendants Tucker, Green, Lee, Rincon, Hernandez,

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Deathridge, and Huckabay for failure to protect Plaintiff; against defendants Tucker,

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Green, and Huckabay for retaliation; and against defendants Tucker, Thompson, and

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Melendez for using excessive force against Plaintiff;

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2.

All remaining claims and defendants be dismissed from this action; and

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3.

Defendants RN Ms. Davis, Med Tech Mr. Chapman, and H. Martinez be dismissed from

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this action based on Plaintiff's failure to state any claims upon which relief may be

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granted against them.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these Findings and Recommendations, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
6i0kij

April 19, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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