Harris v. Gipson et al

Filing 17

FINDINGS and RECOMMENDATIONS Recommending Action Proceed on Plaintiff's Excessive Force and Retaliation Claims Against Certain Named Defendants and Dismissing Defendants Gipson and Cate for Failure to State a Cognizable Claim for Relief 13 , 14 , 15 , signed by Magistrate Judge Stanley A. Boone on 10/30/17: 14-Day Objection Deadline. (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEVONTE B. HARRIS, 12 13 14 15 Plaintiff, v. CONNIE GIPSON, et al., Defendants. 16 17 18 19 20 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00640-DAD-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION PROCEED ON PLAINTIFF’S EXCESSIVE FORCE AND RETALIATION CLAIMS AGAINST CERTAIN NAMED DEFENDANTS AND DISMISSING DEFENDANTS GIPSON AND CATE FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF [ECF Nos. 13, 14, 15] Plaintiff Devonte B. Harris is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 21 On October 17, 2017, the Court screened Plaintiff’s first amended complaint and found that it 22 stated a cognizable excessive force claim against Defendants S. Briones, G. Torres, T. Silva and J. 23 Hernandez and a cognizable retaliation claim against Defendant J. Nail. (ECF No. 14.) Plaintiff was 24 ordered to amend his complaint to attempt to cure the deficiencies identified by the Court in that order, 25 or notify the Court that he is agreeable to proceeding only on the claim identified as cognizable. (Id.) 26 On October 27, 2017, Plaintiff notified the Court that he will not amend his complaint, and 27 agrees to proceed only on the claim found to be cognizable in the Court’s October 17, 2017 screening 28 1 1 order. (ECF No. 15.) As a result, the Court will recommend that Defendants Matthew Cate and Gipson 2 be dismissed from this action, and that it proceed only on the excessive force and retaliation claims 3 identified above for the reasons stated in the Court’s October 17, 2017 screening order. Fed. R. Civ. P. 4 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 5 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 6 Accordingly, it is HEREBY RECOMMENDED that: 7 1. This action only proceed on Plaintiff’s claim against Defendants S. Briones, G. Torres, 8 T. Silva and J. Hernandez for excessive force and against Defendant J. Nail for 9 retaliation; and 2. 10 All other claims and Defendants be dismissed for failure to state a claim upon which relief could be granted. 11 12 These Findings and Recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within fourteen (14) days 14 after being served with these Finding and Recommendations, Plaintiff may file written objections with 15 the Court. The document should be captioned “Objections to Findings and Recommendations.” 16 Plaintiff is advised that failure to file objections within the specified time may result in the waiver of 17 rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 18 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: 22 October 30, 2017 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2

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