Gradford v. McDougall et al

Filing 19

FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed Only Against Defendants Tiexiera and McCarthy for Retaliation in Violation of the First Amendment, and that All Other Claims and Defendants be Dismissed, signed by Magistrate Judge Gary S. Austin on 10/24/17. Referred to Judge Drozd. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WILLIAM J. GRADFORD, Plaintiff, 10 v. 11 12 MCDOUGALL, et al., Defendants. 13 1:17-cv-00201-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS TIEXIERA AND MCCARTHY FOR RETALIATION IN VIOLATION OF THE FIRST AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 14 DAYS 14 15 16 I. BACKGROUND 17 William J. Gradford (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. On February 13, 2017, Plaintiff filed 19 the Complaint commencing this action. (ECF No. 1.) Plaintiff named as defendants five 20 Stanislaus County Sheriff Deputies: McDougall, Tiexiera, McCarthy, Meservey, and Safford 21 (collectively, “Defendants”). 22 The court screened Plaintiff=s Complaint pursuant to 28 U.S.C. ' 1915A and found that 23 it states claims under § 1983 against defendants Tiexiera and McCarthy for retaliation in 24 violation of the First Amendment, and against defendant McDougall for mail interference in 25 violation of the Sixth Amendment. (ECF No. 16.) The court also found that Plaintiff’s two 26 cognizable claims were unrelated under Rule 18. (Id. at 7 ¶A.) On October 16, 2017, Plaintiff 27 was granted leave to either file an amended complaint or notify the court that he is willing to 28 proceed on only one of the claims found cognizable by the court. (Id.) On October 23, 2017, 1 1 Plaintiff filed a notice informing the court that he does not wish to file an amended complaint 2 and is willing to proceed on only one of the two cognizable claims. (ECF Nos. 17, 18.) 3 Plaintiff requests the court to decide which of the two claims shall proceed in this action. (Id.) 4 II. CONCLUSION AND RECOMMENDATIONS 5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. 7 This action proceed only against defendants Tiexiera and McCarthy for retaliation in violation of the First Amendment; 8 2. All remaining claims and defendants be dismissed from this action; 9 3. Plaintiff’s claims concerning mail interference, failure to protect him, and false 10 disciplinary charges be dismissed from this action for violation of Rule 18 and 11 Plaintiff’s failure to state a claim; and 12 4. Defendants McDougall, Meservey, and Safford be dismissed from this action for 13 violation of Rule 18 and Plaintiff's failure to state any claims upon which relief 14 may be granted against them. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 17 fourteen (14) days of the date of service of these Findings and Recommendations, Plaintiff may 18 file written objections with the Court. The document should be captioned AObjections to 19 Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file 20 objections within the specified time may waive the right to appeal the District Court=s order. 21 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 26 IT IS SO ORDERED. Dated: October 24, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28 2

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