Hamilton v. Lara et al

Filing 15

FINDINGS and RECOMMENDATIONS recommending that this 1 Action Proceed only against Defendants Gurrero and Arenivas, on Plaintiff's Eighth Amendment Excessive Force Claims, and all other Claims and Defendants be Dismissed; Objections, if any, Due in 30 Days signed by Magistrate Judge Gary S. Austin on 6/23/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 7/26/2010. (Sant Agata, S)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 LARA, et al., 15 16 17 18 Plaintiff Eugene Hamilton ("plaintiff") is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the original 20 complaint filed by plaintiff on December 29, 2008. (Doc. 1.) The complaint names more than thirty 21 defendants and alleges claims for a number of acts, including retaliation, due process, inadequate 22 medical care, excessive force, appeals process violations, and deprivation of yard time, showers, meals, 23 and access to medications. 24 The Court screened plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found that it states 25 cognizable claims for relief under section 1983 against defendants Gurrero and Arenivas, for excessive 26 force in violation of the Eighth Amendment. On June 14, 2010, plaintiff was given leave to either file 27 an amended complaint, or in the alternative, to notify the Court that he does not wish to file an amended 28 1 Defendants. / vs. EUGENE HAMILTON, Plaintiff, 1:08-cv-01967-OWW-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS GURRERO AND ARENIVAS, ON PLAINTIFF'S EIGHTH AMENDMENT EXCESSIVE FORCE CLAIMS, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 30 DAYS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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complaint and instead wishes to proceed only on the claims identified by the Court as cognizable in the Court's order. (Doc. 12.) On June 21, 2010, plaintiff filed written notice to the Court that he wishes to proceed only 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 Gurrero and Arenivas, on plaintiff's Eighth Amendment excessive force claims; 2. 3. All remaining claims and defendants be dismissed from this action; Plaintiff's claims against defendants Lara, Cohen, Braswell, Hicinbothom, Cano, Quinones, Junious, Moon, Garnett, Wang, Labelle, Minn, Jalisman, McGuinness, Hall, Grannis, Chrones, Adams, Tipton, Wilkins, Schutt, Schape, Doering, and Does 1-10 be dismissed from this action based on plaintiff's failure to state any claims upon which relief may be granted against them; and 4. Plaintiff's claims for retaliation, due process, inadequate medical care, appeals process violations, equal protection, all acts occurring at Lancaster State Prison, claims for injunctive relief, and deprivation of yard time, showers, meals, and access to medications be dismissed for 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

June 23, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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