Carter v. Voong, et al.

Filing 12

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)

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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 DOMINIC CARTER, Plaintiff, 6 7 8 9 10 11 12 v. H. FLORES, et al., Defendants. 1:17-cv-00245-DAD-EPG (PC) 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 (ECF NOS. 1 & 7) OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 13 This is a civil action filed by Dominic Carter (“Plaintiff”), a state prisoner proceeding 14 pro se. This action was initiated by the filing of a civil complaint in Kings County Superior 15 Court on November 23, 2016 (Case #16-C0379). (ECF No. 1, p. 4). On February 16, 2017, 16 defendants Flores, Godwin, Goree, Longoria, and Pacillas removed the case to federal court by 17 filing a notice of removal of action pursuant to 28 U.S.C. § 1441(a). (Id. at pgs. 1-2). Within 18 the notice of removal, these defendants requested that the Court screen Plaintiff’s complaint 19 under 28 U.S.C. § 1915A. (Id. at p. 2). On February 21, 2017, defendant Brown filed a joinder 20 to the notice of removal and request for screening. (ECF No. 5). On February 23, 2017, the 21 Court granted the request for the Court to screen the complaint. (ECF No. 6). 22 On March 31, 2017, the Court screened Plaintiff’s complaint. (ECF No. 7). The Court 23 found that Plaintiff stated a cognizable claim against defendants Longoria and Flores for 24 excessive force in violation of the Eighth Amendment. (Id.). The Court also found that the 25 complaint stated no other cognizable claims against these defendants, or against any other 26 defendant. (Id.). The Court allowed Plaintiff to choose between proceeding only on the claim 27 for unconstitutional excessive force against defendants Longoria and Flores, amending the 28 complaint if Plaintiff believed that additional facts would establish additional claims or claims 1 1 against additional defendants, or standing on the complaint subject to the Court issuing findings 2 and recommendations to the assigned district judge consistent with the screening order. (Id.). 3 On April 10, 2017, Plaintiff notified the Court that he is willing to proceed only on the Eighth 4 Amendment excessive force claim against defendants Longoria and Flores. (ECF No. 9). 5 6 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 7 8 Eighth Amendment against defendants Longoria and Flores; 9 2. All other claims and defendants be dismissed from this action, with prejudice; 10 and 11 3. If these findings and recommendations are adopted, defendants Longoria and 12 Flores be given thirty days from the date of service of the order adopting the 13 findings and recommendations in which to file a responsive pleading to the 14 complaint. 15 These Findings and Recommendations will be submitted to the United States District 16 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1). 17 Within twenty-one (21) days after being served with a copy of these Findings and 18 Recommendations, any party may file written objections with the court and serve a copy on all 19 parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 20 Recommendations.” Any reply to the objections shall be served and filed within ten (10) days 21 after service of the objections. The parties are advised that failure to file objections within the 22 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 23 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 26 IT IS SO ORDERED. Dated: April 11, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 2

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