Vance Edward Johnson v. Barajas

Filing 19

FINDINGS and RECOMMENDATIONS, Recommending That This Action Proceed Only Against Defendant Barajas on Plaintiff's Eighth Amendment Conditions of Confinement Claim, and That All Other Claims and Defendants Be Dismissed, signed by Magistrate Judge Gary S. Austin on 9/21/16: 20-Day Objection Deadline. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 VANCE EDWARD JOHNSON, 11 12 13 14 15 16 Plaintiff, vs. BARAJAS, et al., Defendant. 1:14-cv-01690-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT BARAJAS ON PLAINTIFF’S EIGHTH AMENDMENT CONDITIONS OF CONFINEMENT CLAIM, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 20 DAYS 17 18 Vance Edward Johnson (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. The case now proceeds on 20 the First Amended Complaint filed by Plaintiff on August 21, 2015. (ECF No. 9.) The First 21 Amended Complaint names sole defendant Correctional Officer M. Barajas and alleges claims 22 for adverse conditions of confinement under the Eighth Amendment and equal protection 23 violations under the Fourteenth Amendment. 24 The Court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. 25 ' 1915A and found that it states a cognizable Eighth Amendment conditions of confinement 26 claim against defendant Barajas, but no other claims. (ECF No. 11.) On June 24, 2016, 27 Plaintiff was granted leave to either file a Second Amended Complaint or notify the Court that 28 he is willing to proceed only on the claim found cognizable by the Court. (Id.) On September 1 1 19, 2016, Plaintiff filed a notice informing the Court that he is willing to proceed only on the 2 cognizable Eighth Amendment claim against defendant Barajas. (ECF No. 18.) 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. 5 This action proceed only against defendant Barajas, on Plaintiff’s Eighth Amendment claim for adverse conditions of confinement; 6 2. All remaining claims and defendants be dismissed from this action; and 7 3. Plaintiff’s Fourteenth Amendment equal protection claim be dismissed from this action based on Plaintiff’s failure to state a claim. 8 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 twenty (20) days after being served with these Findings and Recommendations, Plaintiff may 12 file written objections with the Court. The document should be captioned “Objections to 13 Magistrate Judge=s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 (9th Cir. 1991)). 17 18 19 20 IT IS SO ORDERED. Dated: September 21, 2016 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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