Willard v. Neibert et al

Filing 14

ORDER DISMISSING Plaintiff's Eighth Amendment Medical Claim for Failure to State a Cognizable Claim, and Referring Matter Back to Magistrate Judge for Initiation of Service of Process on Plaintiff's Eighth Amendment Claim of Excessive Force signed by District Judge Anthony W. Ishii on 3/11/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSHUA A. WILLARD,

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Plaintiff,

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v.
J. NEIBERT, et al.,

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Defendants.

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Case No.: 1:14-cv-01951-AWI-SAB (PC)
ORDER DISMISSING PLAINTIFF’S EIGHTH
AMENDMENT MEDICAL CLAIM FOR FAILURE
TO STATE A COGNIZABLE CLAIM, AND
REFERRING MATTER BACK TO MAGISTRATE
JUDGE FOR INITIATION OF SERVICE OF
PROCESS ON PLAINTIFF’S EIGHTH
AMENDMENT CLAIM OF EXCESSIVE FORCE
[ECF Nos. 1, 9, 12]

Plaintiff Joshua A. Willard is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983.

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On February 20, 2015, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A

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and found that it stated a claim for against Defendants L. Lara. J. Loveall, and J. Westphal for

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excessive force, and a correlating claim for failure to intervene against Defendant J. Neibert in

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violation of the Eighth Amendment of the United States Constitution. Fed. R. Civ. P. 8(a); Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v.

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Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the Court found that the complaint did not state a

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claim arising out of failure to provide medical care. The Court ordered Plaintiff to either file an

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amended complaint curing the deficiencies identified or notify the Court he is willing to proceed only

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on his cognizable claim. On March 4, 2015, Plaintiff filed a notice stating he does not intend to amend

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and he is willing to proceed only on his cognizable Eighth Amendment claim against Defendants L.

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Lara, J. Loveall, J. Westphal, and J. Neibert.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Eighth Amendment is dismissed for failure to state a cognizable claim for relief;

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Plaintiff’s claim for deliberate indifference to a serious medical need in violation of the

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This action shall proceed on Plaintiff’s claim of excessive force against Defendants L.

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Lara, J. Loveall, J. Westphal, and against Defendant J. Neibert for failure to intervene

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in violation of the Eighth Amendment; and

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3.

The matter is referred back to the Magistrate Judge for initiation of service of process
by the United States marshal.

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IT IS SO ORDERED.

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Dated: March 11, 2015

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SENIOR DISTRICT JUDGE

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