Espritt v. Saesee et al

Filing 30

FINDINGS and RECOMMENDATIONS, Recommending That This Action Proceed Only Against Defendants Saesee, Hill, Torres, Davis, Lopez, Ballesteros, and Magallon on Plaintiff's Claims for Excessive Force, and That All Other Claims and Defendants be Dismissed From This Action, signed by Magistrate Judge Gary S. Austin on 4/29/13. Referred to Judge Ishii; Objections, If Any, Due in Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:11-cv-00519-AWI-GSA-PC

BRIAN ESPRITT,
Plaintiff,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST
DEFENDANTS SAESEE, HILL, TORRES,
DAVIS, LOPEZ, BALLESTEROS, AND
MAGALLON ON PLAINTIFF’S CLAIMS
FOR EXCESSIVE FORCE, AND THAT
ALL OTHER CLAIMS AND
DEFENDANTS BE DISMISSED FROM
THIS ACTION

vs.
A. SAESEE, et al.,

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Defendants.

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OBJECTIONS, IF ANY, DUE IN THIRTY
DAYS

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Brian Espritt (APlaintiff@), a civil detainee at Atascadero State Hospital in Atascadero,

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California, is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42

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U.S.C. ' 1983. This action proceeds on Plaintiff’s Second Amended Complaint, filed on July

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20, 2012.

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(Correctional Counselor I), Velazquez (IGI Officer), Furlong (IGI Officer), Lieutenant Goss,

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and Correctional Officers (C/Os) S. Hill, S. Torres, J. Davis, M. Lopez, A. Ballesteros, and Y.

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Magallon.

(Doc. 17.)

The Second Amended Complaint names defendants A. Saesee

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The court screened Plaintiff=s Second Amended Complaint pursuant to 28 U.S.C.

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' 1915A and found that it states cognizable claims for relief under § 1983 against only
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defendants Saesee, Hill, Torres, Davis, Lopez, Ballesteros, and Magallon for use of excessive

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force in violation of the Eighth Amendment. (Doc. 26.) On April 15, 2013, Plaintiff was given

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leave to either file a Third Amended Complaint or notify the court that he is agreeable to

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proceeding only with the claims found cognizable by the Court. Id. On April 25, 2013,

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Plaintiff filed written notice to the court that he does not wish to file a Third Amended

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Complaint and wishes to proceed only on the claims found cognizable by the Court. (Doc. 27.)

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Based on the foregoing, IT IS HEREBY RECOMMENDED that:

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1.

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This action proceed only against defendants Saesee, Hill, Torres, Davis, Lopez,
Ballesteros, and Magallon for use of excessive force in violation of the Eighth

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Amendment;

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2.

All remaining claims and defendants be dismissed from this action;

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3.

Plaintiff’s claim for loss of property, ADA claim, medical claim, claim for

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denial of access to courts, and claims for declaratory relief and attorney’s fees be

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dismissed from this action based on Plaintiff’s failure to state a claim; and

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4.

Defendants Velazquez, Furlong, and Goss be dismissed from this action based

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on Plaintiff's failure to state any claims upon which relief may be granted

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against them.

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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, Plaintiff may file

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written objections with the Court.

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

The document should be captioned AObjections to

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IT IS SO ORDERED.
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Dated:

April 29, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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