Larry Smith v. Gonzales et al

Filing 19

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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