Charles Windham v. Rodriguez et al

Filing 11

FINDINGS and RECOMMENDATIONS that Certain Claims and Defendant Davey Be Dismissed and that this Action Proceed Against Defendant Rodriguez for Excessive Force, signed by Magistrate Judge Stanley A. Boone on 10/17/16. Referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES WINDHAM, Plaintiff, 12 13 14 15 Case No. 1:16-cv-00979-AWI-SAB-PC FINDINGS AND RECOMMENDATIONS THAT CERTAIN CLAIMS AND DEFENDANT DAVEY BE DISMISSED AND THAT THIS ACTION PROCEED AGAINST DEFENDANT RODRIGUEZ FOR EXCESSIVE FORCE v. C. RODRIGUEZ, et al., Defendants. OBJECTIONS DUE IN THIRTY DAYS 16 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis pursuant to 42 U.S.C. 19 § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 On September 19, 2016, the Court screened Plaintiff’s July 8, 2016, complaint and found 22 that Plaintiff stated a cognizable claim against Defendant Correctional Officer (C/O) Rodriguez 23 for excessive force in violation of the Eighth Amendment. (ECF No. 9) The Court found that 24 Plaintiff failed to state any other cognizable claims against the other defendant, Warden Davey. 25 Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 26 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court ordered 27 Plaintiff to either file an amended complaint curing the deficiencies identified or notify the Court 28 that he is willing to proceed only on his cognizable claim. On October 13, 2016, Plaintiff filed a 1 1 notice stating that he does not intend to amend and is willing to proceed only on the claim found 2 by the Court to be cognizable. (ECF No. 10.) The Court will therefore recommend dismissal of 3 the remaining claims and Defendant Davey. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 4 2007)(court should identify the deficiencies in the complaint and grant Plaintiff opportunity to 5 cure deficiencies prior to dismissal). 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. This action proceed on Plaintiff’s claim of excessive force against Defendant C/O Rodriguez; 8 2. 9 Defendant Warden Davey be dismissed for failure to state a claim upon which relief could be granted; and 10 3. 11 Plaintiff’s claims of denial of medical care, free exercise of religion, access to 12 courts, and deprivation of property be dismissed for failure to state a claim 13 upon which relief could be granted. These findings and recommendations will be submitted to the United States District 14 15 Judge assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within thirty 16 (30) days after being served with these Finding and Recommendations, the parties may file 17 written objections with the Court. The document should be captioned “Objections to Findings 18 and Recommendations.” The parties are advised that failure to file objections within the 19 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 20 834, 838-39 (9th Cir. 2014)(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 IT IS SO ORDERED. 23 Dated: October 17, 2016 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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