Glass v. California Department of Corrections and Rehabilitation et al

Filing 9

FINDINGS and RECOMMENDATIONS recommending that this Action Proceed Only on Cognizable Eighth Amendment Claims and That All Other Claims and Defendants be Dismissed re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 12/1/2017. Referred to Judge Ishii. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD GLASS, 12 13 14 15 Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 17 Defendants. CASE No. 1:17-cv-01013-MJS (PC) FINDINGS AND RECOMMENDATIONS THAT THIS ACTION PROCEED ONLY ON COGNIZABLE EIGHTH AMENDMENT CLAIMS AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED (ECF No. 1) 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. On October 31, 2017, the Court screened Plaintiff’s complaint and found that it states cognizable the following claims for damages against Defendants Gregory and Duran in their individual capacities: against Defendants Gregory and Duran for excessive force, against Defendants Gregory and Duran for deliberate indifference to medical needs, and against Defendant Duran for a failure to protect. (ECF No. 7.) The remaining claims were not cognizable as pled. Plaintiff was ordered to file an amended complaint or notify the Court in writing if he wished to proceed only on the cognizable claims. (Id.) 1 Plaintiff responded that he does not intend to amend and instead wishes to proceed with 2 the cognizable claims. (ECF No. 8.) 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. This action proceed only on the cognizable Eighth Amendment claims 5 for damages against Defendants Gregory and Duran in their individual 6 capacities; and 7 2. All other claims and defendants be dismissed from this action for failure 8 to state a claim. 9 These findings and recommendations will be submitted to the United States 10 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 11 § 636(b)(1). Within fourteen (14) days after being served with the findings and 12 recommendations, Plaintiff may file written objections with the Court. The document 13 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 14 Plaintiff is advised that failure to file objections within the specified time may result in the 15 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 19 IT IS SO ORDERED. Dated: December 1, 2017 /s/ 20 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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