Zaiza v. Guthrie, et al.

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 2/28/2017 recommending that this action proceed only on cognizable Eighth Amendment Claim and that all other claims and Defendants be dismissed re 1 Prisoner Civil Rights Complaint. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE ROBERTO ZAIZA,

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Plaintiff,

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v.
C. GUTHRIE, et al.,
Defendants.

CASE No. 1:16-cv-01862-LJO-MJS (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THIS ACTION
PROCEED ONLY ON COGNIZABLE
EIGHTH AMENDMENT CLAIM AND
THAT ALL OTHER CLAIMS AND
DEFENDANTS BE DISMISSED

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(ECF No. 1)

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FOURTEEN
DEADLINE

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(14)

DAY

OBJECTION

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. On January 30, 2017, the Court

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screened Plaintiff’s complaint and found that it states a cognizable Eighth Amendment

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excessive force claim for damages against Defendant Guthrie, but no other cognizable

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claims. (ECF No. 10.) Plaintiff was ordered to file an amended complaint or notify the

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Court in writing if he wished to proceed only on the cognizable claim. (Id.) Plaintiff

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responded that he does not intend to amend and instead wishes to proceed with the

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cognizable claim. (ECF No. 11)

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Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only on the cognizable Eighth Amendment claim for

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damages against Defendant Guthrie ; and

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2. All other claims and defendants be dismissed from this action for failure

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to state a claim.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.

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§ 636(b)(1). Within fourteen (14) days after being served with the findings and

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recommendations, Plaintiff may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the

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waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

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

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IT IS SO ORDERED.
Dated:

February 28, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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