Shepard v. Cohen et al

Filing 11

FINDINGS and RECOMMENDATIONS Recommending That Plaintiff's 9 Motion to Proceed on Claims Found Cognizable be Granted; FINDINGS AND RECOMMENDATIONS, Recommending That This Action Proceed Only Against Defendants Cohen, Lopez, Campbell, and Dean for Violation of his Rights to due Process and all Other Claims be Dismissed; Objections, if any, due in 30 Days signed by Magistrate Judge Gary S. Austin on 3/9/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 4/12/2010. (Bradley, A)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 17 OBJECTIONS, IF ANY, DUE IN 30 DAYS 18 19 Plaintiff Lamont Shepard, a state prisoner proceeding pro se and in forma pauperis, filed this 20 civil rights action pursuant to 42 U.S.C. § 1983 on September 15, 2009. (Doc. 1.) The complaint 21 names C.M.O. Dr. Cohen, Sergeant I. Lopez, Correctional Officer J. Campbell, Correctional Officer 22 Z. Dean, and Jane Doe as defendants and alleges violations under the Due Process Clause of the 23 Fourteenth Amendment, use of excessive physical force in violation of the Eighth Amendment, and 24 assault and battery under California law. 25 The Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915A and found that it 26 states cognizable claims for relief under section 1983 against Defendants Cohen, Lopez, Campbell, 27 Dean, and Jane Doe for violation of his rights under the Due Process Clause of the Fourteenth 28 1 / v. DR. COHEN, et al., (Doc. 9) Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS COHEN, LOPEZ, CAMPBELL, AND DEAN FOR VIOLATION OF HIS RIGHTS TO DUE PROCESS AND ALL OTHER CLAIMS BE DISMISSED LAMONT SHEPARD, Plaintiff, CASE NO. 1:09-cv-01628-OWW-GSA PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF'S MOTION TO PROCEED ON CLAIMS FOUND COGNIZABLE BE GRANTED

UNITED STATES DISTRICT COURT

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Amendment. On February 25, 2010, 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. 7.) On March 4, 2010, Plaintiff filed written notice to the Court that he wishes to proceed only on the claims found cognizable by the Court. (Doc. 9.) Based on the foregoing, it is HEREBY RECOMMENDED that: 1. Plaintiff's motion to be allowed to proceed on claims found cognizable, filed on March 4, 2010 be GRANTED; 2. This action proceed against Defendants Cohen, Lopez, Campbell, and Dean1 only on Plaintiff's claims for violation of his rights under the Due Process Clause of the Fourteenth Amendment; and 3. All remaining claims be dismissed from this action.

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

March 9, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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The United States Marshal cannot initiate service on a Doe defendant. Plaintiff may amend once he a s c e r ta in s the identity of Jane Doe. W a k e fie ld v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).
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