Melvin R. Brummett, Jr. v. Dean et al

Filing 10

FINDINGS and RECOMMENDATIONS Recommending This Action Proceed on Plaintiff's Retaliation Claims Against Defendants Dean and Rivero, Subject to Severance, and Dismissing All Other Claims, and Defendants signed by Magistrate Judge Stanley A. Boone on 3/10/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., 12 13 14 15 Plaintiff, v. R.A. DEAN, et al., Defendants. 16 17 ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01400-AWI-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING THIS ACTION PROCEED ON PLAINTIFF’S RETALIATION CLAIMS AGAINST DEFENDANTS DEAN AND RIVERO, SUBJECT TO SEVERANCE, AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS [ECF Nos. 1, 8, 9] Plaintiff Melvin Ray Brummett, Jr. is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. Plaintiff declined United States Magistrate Judge jurisdiction; 19 therefore, 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 February 22, 2017, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A 22 and found that it stated two separate and unrelated claims for retaliation against Defendants Dean and 23 Rivero, in violation of the First Amendment of the United States Constitution. Fed. R. Civ. P. 8(a); 24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 25 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the Court found that the 26 complaint did not state a claim against any of the other named Defendants. The Court ordered 27 Plaintiff to either file an amended complaint curing the deficiencies identified or notify the Court he is 28 willing to proceed only on the retaliation claims, subject to severance. On March 9, 2017, Plaintiff 1 1 filed a notice stating he does not intend to amend and he is willing to proceed only on his retaliation 2 claims against Defendants Dean and Rivero, subject to severance. 3 Accordingly, it is HEREBY RECOMMENDED that: 4 1. The instant action proceed against Defendant Dean for retaliation; 5 2. Plaintiff’s retaliation claim against Defendant Rivero be severed and a new case be 6 opened; and 7 3. All other claims and Defendants be dismissed from the action for failure to state a 8 cognizable claim. These Findings and Recommendations will be submitted to the United States District Judge 9 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 11 after being served with these Findings and Recommendations, Plaintiff may file written objections 12 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 13 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 14 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 15 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 IT IS SO ORDERED. 18 Dated: 19 March 10, 2017 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2

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