Garcia v. Juarez

Filing 18

FINDINGS and RECOMMENDATIONS recommending that this case proceed on the First Amended Complaint against Defendant Juarez for use of excessive force in violation of the Eighth Amendment; All other claims be DISMISSED from this action; Plaintiff's equal protection claim be DISMISSED from this action; This case be REFERRED back to the Magistrate Judge for further proceedings, including initiation of service of process re 11 Amended Prisoner Civil Rights Complaint ; referred to Judge Ishii,signed by Magistrate Judge Gary S. Austin on 03/28/2014. Objections to F&R due by 4/21/2014 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO M. GARCIA, JR.,

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Plaintiff,
vs.
MATTHEW M. JUAREZ, JR.,
Defendant.

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1:12-cv-00750-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS
FOR THIS CASE TO PROCEED ONLY
AGAINST DEFENDANT JUAREZ FOR
USE OF EXCESSIVE FORCE, AND
DISMISSING ALL OTHER CLAIMS
OBJECTIONS, IF ANY, DUE IN
TWENTY (20) DAYS

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Roberto M. Garcia, Jr. (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis 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 8, 2012.

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Complaint on June 14, 2013. (Doc. 11.) The First Amended Complaint named one defendant,

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Sergeant Matthew M. Juarez, Jr., and brought claims for use of excessive force and violation of

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equal protection.

(Doc. 1.)

Plaintiff filed the First Amended

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The court screened the First Amended Complaint pursuant to 28 U.S.C. 1915A and

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entered an order on February 24, 2014, for Plaintiff to either file a Second Amended Complaint

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or notify the court that he is willing to proceed only on the claims found cognizable by the

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court. (Doc. 16.) On March 24, 2014, Plaintiff filed a notice informing the court that he is

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willing to proceed only on the cognizable Eighth Amendment excessive force claim against

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defendant Juarez, and does not wish to file a Second Amended Complaint. (Doc. 17.)
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Therefore, the court HEREBY RECOMMENDS that:

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1.

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This case proceed on the First Amended Complaint against defendant Juarez for
use of excessive force in violation of the Eighth Amendment;

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2.

All other claims be dismissed from this action;

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3.

Plaintiff’s equal protection claim be dismissed from this action; and

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4.

This case be referred back to the Magistrate Judge for further proceedings,

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including initiation of service of process.

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These findings and recommendations are 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 twenty

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(20) 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).

Such a document should be captioned "Objections to

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IT IS SO ORDERED.
Dated:

March 28, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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