Goldmas v. Van Wegen, et al.
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-3009 JAM DB P
L. VAN WEGEN, et al.,
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under
42 U.S.C. § 1983. On April 3, 2017, plaintiff’s complaint was screened and found to state a First
Amendment retaliation claim against Correctional Officer (“CO”) Bacerra, CO Lo, and Sgt. Van
Wegen; and an Eighth Amendment excessive force claim against CO Bacerra and Sgt. Van
Wegen. Plaintiff was then directed to file either a first amended complaint or a notice of his
willingness to proceed on the complaint as screened.
When plaintiff failed to respond, an order to show cause issued directing plaintiff to
explain why this action should not be dismissed for his failure to comply with a court order. In
response, plaintiff filed a letter claiming that he was transferred to another institution for mental
health care, and he does not have access to resources for this case. (ECF No. 11.) Based on these
representations, the undersigned recommended that this action be stayed pending a change in
plaintiff’s circumstances. (ECF No. 12.) Plaintiff has since been transferred to California Medical
Facility in Vacaville, California, and it appears that he is ready to proceed with this action. (ECF
No. 14.) Accordingly, the recommendation to stay this case will be vacated.
Plaintiff also filed a letter on September 1, 2017, the contents of which are reproduced
here in their entirety:
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.
(ECF No. 13.)
It is unclear what plaintiff intends by way of this letter. As noted supra, plaintiff’s
complaint was found to state a First Amendment retaliation claim against CO Bacerra, CO Lo,
and Sgt. Van Wegen; and an Eighth Amendment excessive force claim against CO Bacerra and
Sgt. Van Wegen. Plaintiff’s letter suggests that he wishes to proceed on the complaint as
screened, which includes both a First Amendment retaliation claim and an Eighth Amendment
excessive force claim. Alternatively, the letter can be construed as a dismissal of all of his claims
except his Eighth Amendment excessive force claim.
In light of these alternative interpretations, IT IS HEREBY ORDERED that:
1. The July 27, 2017, findings and recommendations (ECF No. 12) are VACATED; and
2. Plaintiff shall submit a letter within twenty-one (21) days from the date of this order
clarifying whether he is willing to proceed on the complaint as screened or whether he
wishes to dismiss all of his claims except his Eighth Amendment excessive force
claim against CO Bacerra and Sgt. Van Wegen. Failure to comply with this order may
result in a recommendation to dismiss this action with prejudice.
Dated: September 13, 2017
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