Fearence v. Schulteis et al
Filing
65
FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed only Against Defendants Hopkins, Busby, Davis, Duffy, and Beckett, and that other Claims and Defendants be Dismissed signed by Magistrate Judge Gary S. Austin on 12/05/2013. Referred to Judge O'Neill; Objections to F&R due by 1/9/2014. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAQUES FEARANCE,
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Plaintiff,
vs.
L. L. SCHULTEIS, et al.,
Defendants.
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1:08-cv-00615-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANTS
HOPKINS, BUSBY, DAVIS, DUFFY, AND
BECKETT, AND THAT ALL OTHER
CLAIMS AND DEFENDANTS BE
DISMISSED
OBJECTIONS, IF ANY, DUE IN 30 DAYS
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Jaques Fearence (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint
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commencing this action on May 1, 2008. (Doc. 1.) The case now proceeds on the Third
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Amended Complaint filed by Plaintiff on November 22, 2013. (Doc. 64.) The Third Amended
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Complaint names as defendants Lieutenant S. Hopkins, J. Busby, T.C. Davis, D. Duffy, and
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J.M. Beckett, and alleges various claims including excessive force, failure to protect, verbal
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harassment, and conspiracy.
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The court screened the Third Amended Complaint and found viable claims against
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defendants Hopkins and Busby for use of excessive force, against defendants Hopkins, Davis,
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Duffy, and Beckett for failure to protect Plaintiff and against defendants Hopkins, Busby,
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Davis, Duffy, and Beckett for conspiracy to use excessive force. The court also found that this
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is a damages only action.
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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This action proceed only against defendants Hopkins and Busby for use of
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excessive force, against defendants Hopkins, Davis, Duffy, and Beckett for
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failure to protect Plaintiff, and against defendants Hopkins, Busby, Davis,
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Duffy, and Beckett for conspiracy to use excessive force.;
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2.
All remaining claims and defendants be dismissed from this action; and
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3.
Plaintiff’s claims for verbal harassment and injunctive relief be dismissed from
this action based on Plaintiff’s failure to state a claim under § 1983.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within
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thirty (30) days after being served with these Findings and Recommendations, any party may
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file written objections with the Court. The document should be captioned AObjections to
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Magistrate Judge=s Findings and Recommendations.@ Any reply to the objections shall be
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served and filed within ten days after service of the objections. The parties are advised that
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failure to file objections within the specified time may waive the right to appeal the District
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Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
December 5, 2013
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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