(PC) Verduzco v. Gipson et al, No. 1:2014cv01083 - Document 27 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants; Fourteen (14) Day Objection Deadline signed by Magistrate Judge Stanley A. Boone on 12/6/2016. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/23/2016. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICARDO VERDUZCO, Plaintiff, 11 12 13 14 v. C. GIPSON, et al., Defendants. 15 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01083-AWI-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS FOURTEEN-DAY DEADLINE 16 17 Plaintiff Ricardo Verduzco is appearing pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 29, 2016, the Court screened Plaintiff’s February 26, 2016 first amended complaint 21 and found that Plaintiff stated cognizable a claim against Defendant Rousseau for a due process 22 violation related to his disciplinary hearing, and for retaliation in violation of the First Amendment. 23 (ECF No. 19.) The Court found that Plaintiff failed to state any other cognizable claims. Fed. R. Civ. 24 P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555 25 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court ordered Plaintiff to either file 26 an amended complaint curing the deficiencies identified or notify the Court that he is willing to 27 proceed only on his cognizable claims. Plaintiff moved for the Court to add Defendants to his first 28 amended complaint, which was denied on October 14, 2016, and Plaintiff was granted an additional 1 1 thirty days to amend his complaint or notify the Court of his intention to proceed on the cognizable 2 claims against Defendant Rousseau. (ECF No. 24.) On December 1, 2016, Plaintiff filed a notice dated November 3, 2016, stating that he does not 3 4 intend to amend and is willing to proceed only on the claims found cognizable against Defendant 5 Rousseau. (ECF No. 25.) Therefore, the Court will recommend that this case proceed only on 6 Plaintiff’s claim against Defendant Rousseau for a due process violation related to his disciplinary 7 hearing, and for retaliation in violation of the First Amendment, and that all other claims and 8 defendants be dismissed, for the reasons explained in the April 29, 2016 screening order. See Lopez 9 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2007) (court should identify the deficiencies in the complaint 10 and grant Plaintiff opportunity to cure deficiencies prior to dismissal). 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. This action proceed on Plaintiff’s claim against Defendant Rousseau for a due process 13 violation related to his disciplinary hearing, and for retaliation in violation of the First Amendment; 14 and 2. 15 16 All other claims and defendants be dismissed for failure to state a claim upon which relief could be granted. 17 These findings and recommendations will be submitted to the United States District Judge 18 assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within fourteen (14) 19 days after being served with these Finding and Recommendations, Plaintiff may file written objections 20 with the Court. The document should be captioned “Objections to Findings and Recommendations.” 21 Plaintiff is advised that failure to file objections within the specified time may result in the waiver of 22 rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014)(citing Baxter v. 23 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 IT IS SO ORDERED. 26 Dated: 27 December 6, 2016 UNITED STATES MAGISTRATE JUDGE 28 2

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