Allred v. California Department of Corrections & Rehabilitation et al

Filing 9

FINDINGS and RECOMMENDATIONS recommending that this action shall proceed against Defendants: Duroy, Johnosn, Moss and Martinez for deliberate indifference in violation of the Eighth Amendment; All other claims and Defendants be Dismissed from the act ion for failure to state a cognizable claim for relief re 1 Prisoner Civil Rights Complaint filed by Jesse D. Allred ; referred to Judge O'Neill,signed by Magistrate Judge Stanley A. Boone on 04/28/17. Objections to F&R due 15-Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) CALIFORNIA DEPARTMENT OF ) CORRECTIONS AND REHABILITATION, ) et al., ) Defendants. ) ) ) JESSE D. ALLRED, Case No.: 1:16-cv-01571-LJO-SAB (PC) FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF Nos. 1, 6, 7] Plaintiff Jesse D. Allred is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint in this action on October 18, 2016, which 20 was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On April 5, 2017, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and 22 found that Plaintiff stated a cognizable claim for deliberate indifference in violation of the Eighth 23 Amendment against Defendants Duroy, Johnson, Moss, and Doe 1 (now identified by Plaintiff as x- 24 ray technician Martinez). Plaintiff was directed to either file an amended complaint or notify the 25 Court that he wished to proceed only the claim found to be cognizable. On April 27, 2017, Plaintiff 26 filed a notice that he did not wish to amend his complaint and wants to proceed on the claim found to 27 be cognizable in the April 5, 2017, screening order. 28 1 1 The Court has found that Plaintiff has stated a cognizable claim against Defendants Duroy, 2 Johnson, Moss, and Martinez and Plaintiff has not stated any other cognizable claims for relief. 3 Accordingly, IT IS HEREBY RECOMMENDED that: 1. 4 5 deliberate indifference in violation of the Eighth Amendment; and 2. 6 7 This action shall proceed against Defendants Duroy, Johnson, Moss, and Martinez for All other claims and Defendants be dismissed from the action for failure to state a cognizable claim for relief. This Findings and Recommendation will be submitted to the United States District Judge 8 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 10 after being served with this Findings and Recommendation, Plaintiff may file written objections with 11 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendation.” Plaintiff is advised that failure to file objections within the specified time may 13 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 14 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 IT IS SO ORDERED. 17 Dated: 18 April 28, 2017 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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