Foster v. Huewe et al

Filing 14

FINDINGS and RECOMMENDATIONS Recommending Dismissing Certain Claims for Failure to State a Claim, signed by Magistrate Judge Stanley A. Boone on 4/20/17. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERRYL TYRONE FOSTER,

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Plaintiff,

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v.

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J. HUEWE, et al.,

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Defendants.

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Case No.: 1:16-cv-01839-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING CERTAIN
CLAIMS FOR FAILURE TO STATE A CLAIM
(ECF Nos. 12, 13)
THIRTY DAY DEADLINE

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Plaintiff Derryl Tyrone Foster is proceeding pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed a complaint in this action on December 8, 2016,

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which was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 5, 2017, Plaintiff’s complaint was screened and was found to state a cognizable claim

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against Defendants Huewe and Vargas for failure to protect, and Defendants Cordova and McIntarr for

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excessive force in violation of the Eighth Amendment. Plaintiff was ordered to either file an amended

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complaint or notify the Court that he wished to proceed only on the claims found to be cognizable. On

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April 19, 2017, Plaintiff filed a notice that he did not wish to amend his complaint and wants to

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proceed on the claims found to be cognizable in the April 5, 2017 screening order.

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The Court has found that Plaintiff has stated a cognizable claim against Defendants Huewe and

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Vargas for failure to protect, and Defendants Cordova and McIntarr for excessive force in violation of
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the Eighth Amendment, but Plaintiff failed to state any other cognizable claims. Accordingly, IT IS

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HEREBY RECOMMENDED that:
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This action proceed against Defendants Huewe and Vargas for failure to protect, and

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Defendants Cordova and McIntarr for excessive force in violation of the Eighth

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Amendment; and
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All other claims be dismissed from the action for failure to state a cognizable claim for
relief.

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This findings and recommendation will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after

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being served with this findings and recommendation, Plaintiff may file written objections with the

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Court.

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recommendation.” Plaintiff is advised that failure to file objections within the specified time may

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result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014)

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(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

The document should be captioned “Objections to Magistrate Judge’s findings and

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IT IS SO ORDERED.

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Dated:

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April 20, 2017
UNITED STATES MAGISTRATE JUDGE

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