Hill v. Clark et al

Filing 10

FINDINGS and RECOMMENDATIONS Recommending that this 1 Action Proceed Only Against Defendants Clark and Rivas on Plaintiff's Eighth Amendment Claims, and all Remaining Claims and Defendants be Dismissed; Objections, if any, Due within Thirty Days signed by Magistrate Judge Gary S. Austin on 10/2/2013. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 11/7/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNATHAN HILL,

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Plaintiff,

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vs.
J. CLARK, et al.,
Defendants.

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1:13-cv-00386-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANTS
CLARK AND RIVAS ON PLAINTIFF’S
EIGHTH AMENDMENT CLAIMS, AND ALL
REMAINING CLAIMS AND DEFENDANTS
BE DISMISSED
(Doc. 1.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

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Johnathan Hill (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. ' 1983. The case now proceeds on the original

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Complaint filed by Plaintiff on March 18, 2013. (Doc. 1.) The Complaint names Correctional

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Officer (C/O) J. Clark, C/O A. Rivas, C/O L. Aragon; C/O A. Tirado; C/O J. Magana, and

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Sergeant W. Rasley as defendants, and alleges claims for excessive force and failure to protect

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under the Eighth Amendment.

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The court screened Plaintiff=s Complaint pursuant to 28 U.S.C. ' 1915A and found that

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it states cognizable claims for relief under § 1983 against defendant C/O J. Clark for use of

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excessive force in violation of the Eighth Amendment, and against defendant C/O A. Rivas for

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failure to protect Plaintiff in violation of the Eighth Amendment. Hudson v. McMillian, 503

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U.S. 1, 5 (1992); Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002); Farmer v. Brennan, 511

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U.S. 825, 832-33 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005).

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September 16, 2013, Plaintiff was given leave to either file an amended complaint, or in the

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alternative, to notify the court that he does not wish to file an amended complaint and instead

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wishes to proceed only on the claims identified by the court as viable/cognizable in the court=s

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order. (Doc. 7.) On September 27, 2013, Plaintiff filed written notice to the court that he

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wishes to proceed only on the claims found cognizable by the court. (Doc. 8.)

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

On

This action proceed only against defendants C/O J. Clark for use of excessive

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force in violation of the Eighth Amendment, and C/O A. Rivas for failure to

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protect Plaintiff in violation of the Eighth Amendment;

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2.

All remaining claims and defendants be dismissed from this action;

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3.

Defendants C/O L. Aragon; C/O A. Tirado; C/O J. Magana, and Sergeant W.

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Rasley be dismissed from this action based on Plaintiff's failure to state any

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claims upon which relief may be granted against them under § 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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