Briones v. Pleasant Valley State Prison et al

Filing 40

FINDINGS and RECOMMENDATIONS recommending that this action proceed only against defendants R. Moore, C. Hendricks, R.Hand and C. Cole on Plaintiff's eighth amendment excessive force claims; all remaining claims and defendants be dismissed from this action re 31 Amended Prisoner Civil Rights Complaint filed by Johnny G. Briones ; referred to Judge O'Neill,signed by Magistrate Judge Erica P. Grosjean on 05/06/2016. Objections to F&R due by 6/1/2016 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY BRIONES,

1:14-cv-00750-LJO-EPG-PC

Plaintiff,

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
vs.
PROCEED ONLY AGAINST DEFENDANTS
MOORE, HENDRICKS, HAND, AND COLE
PLEASANT VALLEY STATE PRISON, ON PLAINTIFF=S EXCESSIVE FORCE
CLAIMS, AND THAT ALL OTHER CLAIMS
et al.,
AND DEFENDANTS BE DISMISSED
Defendants.
OBJECTIONS, IF ANY, DUE IN 20 DAYS

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Johnny Briones (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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

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Amended Complaint filed by Plaintiff on February 13, 2015. (ECF No. 31.) The Second

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Amended Complaint names defendants Warden Scott Frauenheim, Correctional Officer (C/O)

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R. Moore, C/O C. Hendricks, C/O R. Hand, C/O C. Cole, and multiple Doe Defendants, and

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alleges Eighth Amendment claims for excessive force, supervisory liability, inadequate medical

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care, and failure to protect, Fourteenth Amendment liberty interests, and conspiracy.

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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 excessive force claims under § 1983 against C/O R.

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Moore, C/O C. Hendricks, C/O R. Hand, and C/O C. Cole. (ECF No. 35.) On April 6, 2016,

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Plaintiff was granted leave to either file a Third Amended Complaint or notify the Court that he
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is willing to proceed only on the claims found cognizable by the Court. (Id.) On May 5, 2016,

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Plaintiff filed a notice informing the Court that he is willing to proceed only on the cognizable

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Eighth Amendment excessive force claims against defendants Moore, Hendricks, Hand, and

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Cole. (ECF No. 38.)

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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 R. Moore, C/O C. Hendricks,

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C/O R. Hand, and C/O C. Cole, on Plaintiff’s Eighth Amendment excessive

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force claims;

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2.

All remaining claims and defendants be dismissed from this action;

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3.

Plaintiff’s claims for supervisory liability, inadequate medical care, failure to

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protect, Fourteenth Amendment liberty interests, and conspiracy be dismissed

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

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4.

Defendants Warden Scott Frauenheim and the Doe Defendants be dismissed
from this action based on Plaintiff’s failure to state any claims 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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twenty (20) days after being served with these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned “Objections to

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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 result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

May 6, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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