Exmundo v. Vella et al
Filing
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FINDINGS And RECOMMENDATIONS, Recommending That This Action Proceed Only Against Defendant Vogel For Retaliation And Excessive Force And All Other Claims And Defendants Be Dismissed 26 , Objections, If Any, Due In 30 Days, signed by Magistrate Judge Gerald B. Cohn on 5/18/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 6/20/2011.(Fahrney, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EMELITO EXMUNDO
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Plaintiff,
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v.
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VELLA, et. al.,
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Defendants.
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CASE NO. 1:07-cv-01714-AWI-GBC (PC)
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANT
VOGEL FOR RETALIATION AND
EXCESSIVE FORCE AND ALL OTHER
CLAIMS AND DEFENDANTS BE
DISMISSED
/ OBJECTIONS, IF ANY, DUE IN 30 DAYS
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Emelito Exmundo (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. § 1983. On November 21, 2007, Defendants removed the case to federal
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court. (Doc. 1). On December 15, 2008, Plaintiff filed the first amended complaint. (Doc. 20). On
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March 31, 2009, the action was consolidated with Case No. 1:06-cv-00205 by District Court order.
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(Doc. 21). On October 15, 2010, the action was reopened as a separate action. (Doc. 22). With
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leave from Court, on January 14, 2011, Plaintiff filed the second amended complaint. (Doc. 26).
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Pursuant to 28 U.S.C. § 1915A, the Court screen the second amended complaint on May 2, 2011,
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and found that Plaintiff only stated a cognizable claim against Defendant Vogel for retaliation under
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the First Amendment and excessive force under the Eighth Amendment. (Doc. 28). The Court
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ordered Plaintiff to either address the shortcomings of the complaint through amendment or to notify
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the Court of his willingness to proceed on the cognizable claims. (Doc. 28). On May 12, 2011,
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Plaintiff gave notice of his willingness to proceed on the cognizable retaliation and excessive force
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claims against Defendant Vogel. (Doc. 29).
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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This action proceed against Defendant Vogel for violation of Plaintiff’s rights under
the Eighth Amendment for excessive force and First Amendment for retaliation; and
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All remaining claims and defendants be dismissed from this action.
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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)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
0jh02o
May 18, 2011
UNITED STATES MAGISTRATE JUDGE
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