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)

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