Carter v. Voong, et al.
FINDINGS and RECOMMENDATIONS recommending that this Case Proceed Against Defendants Longoria and Flores on a Claim for Excessive Force in Violation of the Eighth Amendment, and That All Other Claims and Defendants be Dismissed With Prejudice re 1 Notice of Removal signed by Magistrate Judge Erica P. Grosjean on 4/11/2017. Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
H. FLORES, et al.,
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE
PROCEED AGAINST DEFENDANTS
LONGORIA AND FLORES ON A CLAIM
FOR EXCESSIVE FORCE IN VIOLATION
OF THE EIGHTH AMENDMENT, AND
THAT ALL OTHER CLAIMS AND
DEFENDANTS BE DISMISSED WITH
(ECF NOS. 1 & 7)
OBJECTIONS, IF ANY, DUE WITHIN
This is a civil action filed by Dominic Carter (“Plaintiff”), a state prisoner proceeding
pro se. This action was initiated by the filing of a civil complaint in Kings County Superior
Court on November 23, 2016 (Case #16-C0379). (ECF No. 1, p. 4). On February 16, 2017,
defendants Flores, Godwin, Goree, Longoria, and Pacillas removed the case to federal court by
filing a notice of removal of action pursuant to 28 U.S.C. § 1441(a). (Id. at pgs. 1-2). Within
the notice of removal, these defendants requested that the Court screen Plaintiff’s complaint
under 28 U.S.C. § 1915A. (Id. at p. 2). On February 21, 2017, defendant Brown filed a joinder
to the notice of removal and request for screening. (ECF No. 5). On February 23, 2017, the
Court granted the request for the Court to screen the complaint. (ECF No. 6).
On March 31, 2017, the Court screened Plaintiff’s complaint. (ECF No. 7). The Court
found that Plaintiff stated a cognizable claim against defendants Longoria and Flores for
excessive force in violation of the Eighth Amendment. (Id.). The Court also found that the
complaint stated no other cognizable claims against these defendants, or against any other
defendant. (Id.). The Court allowed Plaintiff to choose between proceeding only on the claim
for unconstitutional excessive force against defendants Longoria and Flores, amending the
complaint if Plaintiff believed that additional facts would establish additional claims or claims
against additional defendants, or standing on the complaint subject to the Court issuing findings
and recommendations to the assigned district judge consistent with the screening order. (Id.).
On April 10, 2017, Plaintiff notified the Court that he is willing to proceed only on the Eighth
Amendment excessive force claim against defendants Longoria and Flores. (ECF No. 9).
Accordingly, for the reasons laid out in the Court’s order that was entered on March 21,
2017 (ECF No. 7), it is HEREBY RECOMMENDED that:
1. This case proceed only on Plaintiff’s claim for excessive force in violation of the
Eighth Amendment against defendants Longoria and Flores;
2. All other claims and defendants be dismissed from this action, with prejudice;
3. If these findings and recommendations are adopted, defendants Longoria and
Flores be given thirty days from the date of service of the order adopting the
findings and recommendations in which to file a responsive pleading to the
These Findings and Recommendations will be submitted to the United States District
Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1).
Within twenty-one (21) days after being served with a copy of these Findings and
Recommendations, any party may file written objections with the court and serve a copy on all
parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
Recommendations.” Any reply to the objections shall be served and filed within ten (10) days
after service of the objections. The parties are advised that failure to file objections within the
specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d
834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
April 11, 2017
UNITED STATES MAGISTRATE JUDGE
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