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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOMINIC CARTER,
Plaintiff,

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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

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This is a civil action filed by Dominic Carter (“Plaintiff”), a state prisoner proceeding

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pro se. This action was initiated by the filing of a civil complaint in Kings County Superior

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Court on November 23, 2016 (Case #16-C0379). (ECF No. 1, p. 4). On February 16, 2017,

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defendants Flores, Godwin, Goree, Longoria, and Pacillas removed the case to federal court by

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filing a notice of removal of action pursuant to 28 U.S.C. § 1441(a). (Id. at pgs. 1-2). Within

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the notice of removal, these defendants requested that the Court screen Plaintiff’s complaint

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under 28 U.S.C. § 1915A. (Id. at p. 2). On February 21, 2017, defendant Brown filed a joinder

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to the notice of removal and request for screening. (ECF No. 5). On February 23, 2017, the

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Court granted the request for the Court to screen the complaint. (ECF No. 6).

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On March 31, 2017, the Court screened Plaintiff’s complaint. (ECF No. 7). The Court

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found that Plaintiff stated a cognizable claim against defendants Longoria and Flores for

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excessive force in violation of the Eighth Amendment. (Id.). The Court also found that the

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complaint stated no other cognizable claims against these defendants, or against any other

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defendant. (Id.). The Court allowed Plaintiff to choose between proceeding only on the claim

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for unconstitutional excessive force against defendants Longoria and Flores, amending the

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complaint if Plaintiff believed that additional facts would establish additional claims or claims
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against additional defendants, or standing on the complaint subject to the Court issuing findings

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and recommendations to the assigned district judge consistent with the screening order. (Id.).

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On April 10, 2017, Plaintiff notified the Court that he is willing to proceed only on the Eighth

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Amendment excessive force claim against defendants Longoria and Flores. (ECF No. 9).

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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

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Eighth Amendment against defendants Longoria and Flores;

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2. All other claims and defendants be dismissed from this action, with prejudice;

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and

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3. If these findings and recommendations are adopted, defendants Longoria and

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Flores be given thirty days from the date of service of the order adopting the

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findings and recommendations in which to file a responsive pleading to the

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complaint.

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

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Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. § 636 (b)(1).

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Within twenty-one (21) days after being served with a copy of these Findings and

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Recommendations, any party may file written objections with the court and serve a copy on all

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parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within ten (10) days

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after service of the objections. The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

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834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 11, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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