Passineau v. Oxborrow et al

Filing 12

FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed Only Against Defendants Cantu, Oxborrow, and Rodriguez for Excessive Force, and Against Defendant for Failure to Protect Plaintiff, and All Remaining Claims and Defendants be Dismissed, signed by Magistrate Judge Gary S. Austin on 10/2/13. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRETT PASSINEAU,
Plaintiff,

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vs.
W. OXBORROW, et al.,
Defendants.

1:12-cv-01894-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANTS
CANTU, OXBORROW, AND RODRIGUEZ
FOR EXCESSIVE FORCE, AND AGAINST
DEFENDANT CANTU FOR FAILURE TO
PROTECT PLAINTIFF, AND ALL
REMAINING CLAIMS AND DEFENDANTS
BE DISMISSED
(Doc. 1.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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Brett Passineau (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. ' 1983. The case now proceeds on the original
Complaint filed by Plaintiff on November 19, 2012.

(Doc. 1.)

The Complaint names

Correctional Officer (C/O) E. Cantu, C/O R. Gamboa, C/O R. Rodriguez, and Sergeant (Sgt.)
W. Oxborrow as defendants, and alleges claims for excessive force, failure to protect, and
inadequate medical care under the Eighth Amendment.
The court screened Plaintiff=s Complaint pursuant to 28 U.S.C. ' 1915A and found that
it states cognizable claims for relief under § 1983 against C/O Cantu, C/O R. Rodriguez, and
Sgt. Oxborrow for use of excessive physical force, and against defendant C/O E. Cantu for
failure to protect Plaintiff. (Doc. 9.) On September 19, 2013, Plaintiff was given leave to
either file an amended complaint, or in the alternative, to notify the court that he does not wish
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to file an amended complaint and instead wishes to proceed only on the claims identified by the

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court as viable/cognizable in the court=s order. (Id.) On September 30, 2013, Plaintiff filed

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written notice to the court that he wishes to proceed only on the claims found cognizable by the

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court. (Doc. 10.)

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

This action proceed only against defendants C/O E. Cantu, C/O R. Rodriguez,

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and Sgt. W. Oxborrow for use of excessive physical force, and against defendant

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C/O E. Cantu for failure to protect Plaintiff, 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 inadequate medical care under the Eighth Amendment be

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

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which relief may be granted under § 1983; and

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4.

Defendant C/O R. Gamboa be dismissed from this action based on Plaintiff's

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failure to state any claims upon which relief may be granted against him under §

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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, 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.
Dated:

October 2, 2013

/s/ Gary S. Austin
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UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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