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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOSE ROBERTO ZAIZA, 10 Plaintiff, 11 12 13 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 14 (ECF No. 1) 15 FOURTEEN DEADLINE 16 (14) DAY OBJECTION 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action brought pursuant to 42 U.S.C. § 1983. On January 30, 2017, the Court 20 screened Plaintiff’s complaint and found that it states a cognizable Eighth Amendment 21 excessive force claim for damages against Defendant Guthrie, but no other cognizable 22 claims. (ECF No. 10.) Plaintiff was ordered to file an amended complaint or notify the 23 Court in writing if he wished to proceed only on the cognizable claim. (Id.) Plaintiff 24 responded that he does not intend to amend and instead wishes to proceed with the 25 cognizable claim. (ECF No. 11) 26 27 28 Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed only on the cognizable Eighth Amendment claim for 1 damages against Defendant Guthrie ; and 2 2. All other claims and defendants be dismissed from this action for failure 3 to state a claim. 4 These findings and recommendations will be submitted to the United States 5 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 6 § 636(b)(1). Within fourteen (14) days after being served with the findings and 7 recommendations, Plaintiff may file written objections with the Court. The document 8 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 9 Plaintiff is advised that failure to file objections within the specified time may result in the 10 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 11 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 13 14 IT IS SO ORDERED. Dated: February 28, 2017 /s/ 15 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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