Goldmas v. Van Wegen, et al.

Filing 15

ORDER signed by Magistrate Judge Deborah Barnes on 9/13/2017 VACATING the 7/12/2017 12 findings and recommendations. Plaintiff shall submit a letter within 21 days clarifying whether he is willing to proceed on the complaint as screened or whether he wishes to dismiss all his claims except his Eighth Amendment excessive force claim against CO Bacerra and Sgt. Van Wegen. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONNIE GOLDMAS,

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No. 2:16-cv-3009 JAM DB P

Plaintiff,
v.

ORDER

L. VAN WEGEN, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. On April 3, 2017, plaintiff’s complaint was screened and found to state a First

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Amendment retaliation claim against Correctional Officer (“CO”) Bacerra, CO Lo, and Sgt. Van

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Wegen; and an Eighth Amendment excessive force claim against CO Bacerra and Sgt. Van

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Wegen. Plaintiff was then directed to file either a first amended complaint or a notice of his

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willingness to proceed on the complaint as screened.

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When plaintiff failed to respond, an order to show cause issued directing plaintiff to

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explain why this action should not be dismissed for his failure to comply with a court order. In

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response, plaintiff filed a letter claiming that he was transferred to another institution for mental

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health care, and he does not have access to resources for this case. (ECF No. 11.) Based on these

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representations, the undersigned recommended that this action be stayed pending a change in

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plaintiff’s circumstances. (ECF No. 12.) Plaintiff has since been transferred to California Medical
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Facility in Vacaville, California, and it appears that he is ready to proceed with this action. (ECF

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No. 14.) Accordingly, the recommendation to stay this case will be vacated.

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Plaintiff also filed a letter on September 1, 2017, the contents of which are reproduced
here in their entirety:

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I agree with the court and I will dismiss all other charges except
excessive force as to your judgement was renderd [sic]. What ever
forms are need[ed] to reflect my decision to not amend complaint.
Thank you for your time & help.

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(ECF No. 13.)
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It is unclear what plaintiff intends by way of this letter. As noted supra, plaintiff’s

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complaint was found to state a First Amendment retaliation claim against CO Bacerra, CO Lo,
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and Sgt. Van Wegen; and an Eighth Amendment excessive force claim against CO Bacerra and
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Sgt. Van Wegen. Plaintiff’s letter suggests that he wishes to proceed on the complaint as

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screened, which includes both a First Amendment retaliation claim and an Eighth Amendment
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excessive force claim. Alternatively, the letter can be construed as a dismissal of all of his claims
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except his Eighth Amendment excessive force claim.
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In light of these alternative interpretations, IT IS HEREBY ORDERED that:
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1. The July 27, 2017, findings and recommendations (ECF No. 12) are VACATED; and
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2. Plaintiff shall submit a letter within twenty-one (21) days from the date of this order
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clarifying whether he is willing to proceed on the complaint as screened or whether he
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wishes to dismiss all of his claims except his Eighth Amendment excessive force
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claim against CO Bacerra and Sgt. Van Wegen. Failure to comply with this order may
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result in a recommendation to dismiss this action with prejudice.
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Dated: September 13, 2017
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/DLB7;
DB/Inbox/Substantive/gold3009.stay.fr

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