Larry Smith v. Gonzales et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed only Against Defendants Sgt. Gonzalez, Johnson, Castro, Miner, Florez, and Potzernitz for use of Excessive Force; Defendants Fritz and Scaife for Failure to Protect; and Defendant Sgt. Gonzales for Retaliation; and that all other Claims and Defendants be Dismissed signed by Magistrate Judge Gary S. Austin on 04/19/20018. Referred to Judge Drozd; Objections to F&R due by 5/7/2018. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LARRY SMITH,
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Plaintiff,
1:17-cv-00436-DAD-GSA-PC
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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
PROCEED ONLY AGAINST DEFENDANTS
SGT. GONZALES, JOHNSON, CASTRO,
MINER, FLOREZ, AND POTZERNITZ FOR
USE OF EXCESSIVE FORCE; DEFENDANTS
FRITZ AND SCAIFE FOR FAILURE TO
PROTECT; AND DEFENDANT SGT.
GONZALES FOR RETALIATION; AND THAT
ALL OTHER CLAIMS AND DEFENDANTS
BE DISMISSED
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OBJECTIONS, IF ANY, DUE IN 14 DAYS
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vs.
SGT. J. GONZALES, et al.,
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Defendants.
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I.
BACKGROUND
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Larry Smith (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint
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commencing this action on March 27, 2017. (ECF No. 1.) On June 23, 2017, Plaintiff filed the
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First Amended Complaint as a matter of course. (ECF No. 12.)
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The court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915A
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and found that it states cognizable claims under § 1983 against defendants Sergeant Gonzales,
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Correctional Officer (C/O) Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz
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for use of excessive force in violation of the Eighth Amendment; against defendants C/O Fritz
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and C/O Scaife for failure to protect Plaintiff in violation of the Eighth Amendment; and
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against defendant Sergeant Gonzales for retaliation in violation of the First Amendment.1 On
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March 30, 2018, Plaintiff was granted leave to either file an amended complaint or notify the
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court that he is willing to proceed only on the claims found cognizable by the court. (ECF No.
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16.) On April 17, 2018, Plaintiff filed a notice informing the court that he is willing to proceed
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only on the claims found cognizable by the court. (ECF No. 17.)
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
This action proceed only against defendants Sergeant Gonzales, Correctional
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Officer (C/O) Johnson, C/O Castro, C/O Miner, C/O Florez, and C/O Potzernitz
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for use of excessive force in violation of the Eighth Amendment; against
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defendants C/O Fritz and C/O Scaife for failure to protect Plaintiff in violation
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of the Eighth Amendment; and against defendant Sergeant Gonzales for
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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.
Defendant C/O Gonzales be dismissed from this action based on Plaintiff's
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failure to state any claims against him upon which relief may be granted against
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him;
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4.
Plaintiff’s claims for an improper strip search, due process violations, false
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reports, deprivation of personal property, detention in administrative
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segregation, loss of good-time credits, loss of privileges, improper appeals
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process, and cover-up be dismissed from this action based on Plaintiff’s failure
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to state a claim upon which relief may be granted;
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5.
Sgt. J. Gonzales) from this case on the court’s docket; and
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The Clerk of Court be directed to reflect the dismissal of C/O Gonzales (but not
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The court notes that Plaintiff named two defendants in the First Amended Complaint with the
last name Gonzales: (1) Sergeant J. Gonzales, and (2) Correctional Officer Gonzales. (ECF No. 12 at 1-4.) By
this order, the court recommends dismissal of Correctional Officer Gonzales but not Sergeant J. Gonzales.
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6.
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This case be referred back to the Magistrate Judge for further proceedings,
including service of process.
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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 after the date of service of these Findings and Recommendations, Plaintiff
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may file written objections with the Court. The document should be captioned “Objections 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:
April 19, 2018
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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