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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONTE B. HARRIS,

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Plaintiff,
v.
CONNIE GIPSON, et al.,
Defendants.

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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.

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On October 17, 2017, the Court screened Plaintiff’s first amended complaint and found that it

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stated a cognizable excessive force claim against Defendants S. Briones, G. Torres, T. Silva and J.

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Hernandez and a cognizable retaliation claim against Defendant J. Nail. (ECF No. 14.) Plaintiff was

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ordered to amend his complaint to attempt to cure the deficiencies identified by the Court in that order,

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or notify the Court that he is agreeable to proceeding only on the claim identified as cognizable. (Id.)

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On October 27, 2017, Plaintiff notified the Court that he will not amend his complaint, and

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agrees to proceed only on the claim found to be cognizable in the Court’s October 17, 2017 screening

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order. (ECF No. 15.) As a result, the Court will recommend that Defendants Matthew Cate and Gipson

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be dismissed from this action, and that it proceed only on the excessive force and retaliation claims

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identified above for the reasons stated in the Court’s October 17, 2017 screening order. Fed. R. Civ. P.

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8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

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(2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

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Accordingly, it is HEREBY RECOMMENDED that:

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This action only proceed on Plaintiff’s claim against Defendants S. Briones, G. Torres,

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T. Silva and J. Hernandez for excessive force and against Defendant J. Nail for

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retaliation; and
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All other claims and Defendants be dismissed for failure to state a claim upon which
relief could be granted.

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

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assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within fourteen (14) days

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after being served with these Finding and Recommendations, Plaintiff may file written objections with

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the Court. The document should be captioned “Objections to Findings and Recommendations.”

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Plaintiff is advised that failure to file objections within the specified time may result in the waiver of

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rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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October 30, 2017
UNITED STATES MAGISTRATE JUDGE

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