Asberry v. Biter

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 2/28/2017 recommending that this action proceed only on cognizable claims and that all other claims and defendants be dismissed re 1 Prisoner Civil Rights Complaint. Referred to Judge Dale A. Drozd; Objections to F&R due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 TONY ASBERRY, Plaintiff, 11 12 13 14 15 16 Case No. 1:16-cv-01741-DAD-MJS (PC) v. WARDEN BITER, et al., Defendants. FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION PROCEED ONLY ON COGNIZABLE CLAIMS AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED (ECF NO. 1) FOURTEEN (14) DAY OBJECTION DEADLINE 17 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 20 rights action brought pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff’s 21 complaint (ECF No. 1), and found that it states the following cognizable claims: an 22 Eighth Amendment claim for medical indifference against Defendants Lozovoy and 23 Relevante (formerly identified as Doe 3, see ECF No. 14), and Eighth Amendment 24 conditions of confinement and First Amendment retaliation claims against Defendants 25 Ferris and Godfrey. The remaining claims were not cognizable as pled. (ECF No. 5.) 26 Plaintiff was ordered to file an amended complaint or notify the Court in writing if 27 he wished to proceed only on the cognizable claims. (Id.) Plaintiff responded that he 28 1 does not wish to amend and instead wishes to proceed with the cognizable claims. 2 (ECF No. 7.) Based on the foregoing, it is HEREBY RECOMMENDED that: 3 1. This action proceed only on the following claims: an Eighth 4 5 Amendment claim for medical indifference against Defendants 6 Lozovoy and Relevante, and Eighth Amendment conditions of 7 confinement and First Amendment retaliation claims against 8 Defendants Ferris and Godfrey; and 2. All other claims and defendants be dismissed from this action for 9 failure to state a claim. 10 These findings and recommendations will be submitted to the United States 11 12 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 13 § 636(b)(1). Within fourteen (14) days after being served with the findings and 14 recommendations, Plaintiff may file written objections with the Court. The document 15 should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff is advised that failure to file objections within the specified 17 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 22 Dated: February 28, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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