(PC) Hunter v. Youngblood et al, No. 1:2007cv00373 - Document 20 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this action proceed only against Officer Hinojosa, for excessive force under the Due Process Clause; all remaining claims and defendants be DISMISSED from this action;Plaintiff's claims against defe ndants Kern County Sheriff Donny Youngblood, OfficerP. Davis, Deputy Sheriff Sergeant Mann, and District Attorney Edward R. Jagels be DISMISSED from this action based on Plaintiff's failure to state any claims upon which relief may be granted ag ainst them; Plaintiff's claims for equal protection, supervisory liability, and malicious prosecution be DISMISSED for failure to state a claim upon which relief may be granted under section1983; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 09/03/2009. (Objections to F&R due by 10/6/2009) (Martin, S)
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(PC) Hunter v. Youngblood et al Doc. 20 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 LEROY DEWITT HUNTER, 9 10 1:07-cv-00373-LJO-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT HINOJOSA FOR EXCESSIVE FORCE UNDER THE DUE PROCESS CLAUSE, AND THAT ALL REMAINING CLAIMS AND DEFENDANTS BE DISMISSED vs. 11 YOUNGBLOOD, et al., 12 13 Defendants. OBJECTIONS, IF ANY, DUE IN 30 DAYS / 14 15 Plaintiff Leroy Dewitt Hunter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the original complaint 17 on March 7, 2007, against defendants Kern County Sheriff Donny Youngblood, Officer P. Davis, Officer 18 Hinojosa, Deputy Sheriff Sergeant Mann, and District Attorney Edward R. Jagels, and alleged claims 19 for excessive force, supervisory liability, and malicious prosecution . (Doc. 1.) On December 31, 2008, 20 Plaintiff filed a first amended complaint, upon which this case now proceeds. (Doc. 15.) The first 21 amended complaint names only Officer Hinojosa as a defendant and alleges claims for excessive force 22 and equal protection. 23 The Court screened Plaintiff’s first amended complaint pursuant to 28 U.S.C. § 1915A and found 24 that it states a cognizable claim for relief under section 1983 against defendant Officer Hinojosa for 25 excessive force under the Due Process Clause. On June 11, 2009, Plaintiff was given leave to either file 26 a second amended complaint, or in the alternative, to notify the Court that he does not wish to file a 27 second amended complaint and instead wishes to proceed only on the claim identified by the Court as 28 viable/cognizable in the Court’s order. (Doc. 16.) On August 31, 2009, Plaintiff filed written notice 1 Dockets.Justia.com 1 to the Court that he does not wish to file a second amended complaint and only wishes to proceed against 2 defendant Hinojosa on the claim for excessive force under the Due Process Clause. (Doc. 18.) 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. 5 This action proceed only against Officer Hinojosa, for excessive force under the Due Process Clause; 6 2. All remaining claims and defendants be dismissed from this action; 7 3. Plaintiff's claims against defendants Kern County Sheriff Donny Youngblood, Officer 8 P. Davis, Deputy Sheriff Sergeant Mann, and District Attorney Edward R. Jagels be 9 dismissed from this action based on Plaintiff's failure to state any claims upon which 10 11 relief may be granted against them; and 4. Plaintiff's claims for equal protection, supervisory liability, and malicious prosecution 12 be dismissed for failure to state a claim upon which relief may be granted under section 13 1983. 14 These Findings and Recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 16 after being served with these Findings and Recommendations, Plaintiff may file written objections with 17 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 18 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 19 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 IT IS SO ORDERED. Dated: 6i0kij September 3, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2
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