Burnett v. Sedillo et al

Filing 14

FINDINGS and RECOMMENDATIONS recommending that this Action Proceed Only Against Defendants Meier, Reynaga, Huckleberry, Garcia, and Dyer for Use of Excessive Force, and that All Other Claims and Defendants be Dismissed re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 9/25/2017. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CARLOS BURNETT, 11 Plaintiff, 12 13 vs. K. SEDILLO, et al., 14 Defendants. 15 1:16-cv-01672-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS MEIER, REYNAGA, HUCKLEBERRY, GARCIA, AND DYER FOR USE OF EXCESSIVE FORCE, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN FOURTEEN (14) DAYS 16 17 18 Carlos Burnett (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 with this civil rights action pursuant to 42 U.S.C. § 1983. 20 commencing this action on November 3, 2016. (ECF No. 1.) Plaintiff filed the Complaint 21 The court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A and found that 22 it states cognizable excessive force claims against defendants Correctional Officer (C/O) G. 23 Meier, C/O R. Reynaga, Sergeant G. Garcia, C/O C. Huckleberry, and C/O Ryan Dyer, but no 24 other claims. (ECF No. 12.) On August 28, 2017, Plaintiff was granted leave to either file an 25 amended complaint or notify the court that he is willing to proceed only on the claims found 26 cognizable by the court. (Id.) On September 21, 2017, Plaintiff filed a notice informing the 27 court that he is willing to proceed only on the cognizable excessive force claims. (ECF No. 28 13.) 1 1 Based on the foregoing, it is HEREBY RECOMMENDED that: 2 1. This action proceed only against defendants Meier, Reynaga, Huckleberry, 3 Garcia, and Dyer, for use of excessive force in violation of the Eighth 4 Amendment; 5 2. All remaining claims and defendants be dismissed from this action; 6 3. Plaintiff’s claims for violation of due process, failure to protect him, and 7 retaliation be dismissed from this action based on Plaintiff’s failure to state a 8 claim; and 9 4. Defendants Sedillo, Davidson, and Nuckles be dismissed from this action for Plaintiff’s failure to state any cognizable claims against them. 10 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 13 fourteen (14) days of the date of service of these Findings and Recommendations, Plaintiff 14 may file written objections with the Court. The document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 16 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 17 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 18 (9th Cir. 1991)). 19 20 21 22 IT IS SO ORDERED. Dated: September 25, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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