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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM J. GRADFORD,
Plaintiff,

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v.

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MCDOUGALL, et al.,
Defendants.

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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

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I.

BACKGROUND

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William J. Gradford (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On February 13, 2017, Plaintiff filed

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the Complaint commencing this action. (ECF No. 1.) Plaintiff named as defendants five

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Stanislaus County Sheriff Deputies: McDougall, Tiexiera, McCarthy, Meservey, and Safford

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(collectively, “Defendants”).

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The court screened Plaintiff=s Complaint pursuant to 28 U.S.C. ' 1915A and found that

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it states claims under § 1983 against defendants Tiexiera and McCarthy for retaliation in

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violation of the First Amendment, and against defendant McDougall for mail interference in

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violation of the Sixth Amendment. (ECF No. 16.) The court also found that Plaintiff’s two

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cognizable claims were unrelated under Rule 18. (Id. at 7 ¶A.) On October 16, 2017, Plaintiff

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was granted leave to either file an amended complaint or notify the court that he is willing to

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proceed on only one of the claims found cognizable by the court. (Id.) On October 23, 2017,
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Plaintiff filed a notice informing the court that he does not wish to file an amended complaint

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and is willing to proceed on only one of the two cognizable claims. (ECF Nos. 17, 18.)

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Plaintiff requests the court to decide which of the two claims shall proceed in this action. (Id.)

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II.

CONCLUSION AND RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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This action proceed only against defendants Tiexiera and McCarthy for
retaliation in violation of the First Amendment;

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2.

All remaining claims and defendants be dismissed from this action;

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3.

Plaintiff’s claims concerning mail interference, failure to protect him, and false

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disciplinary charges be dismissed from this action for violation of Rule 18 and

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Plaintiff’s failure to state a claim; and

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4.

Defendants McDougall, Meservey, and Safford be dismissed from this action for

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violation of Rule 18 and Plaintiff's failure to state any claims upon which relief

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may be granted against them.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

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fourteen (14) days of the date of service of these Findings and Recommendations, Plaintiff may

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file written objections with the Court. The document should be captioned AObjections to

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Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court=s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

October 24, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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