(PC) Thomas v. CA Dept. of Corrections and Rehabilitation, et al., No. 1:2007cv01165 - Document 20 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 11 this Action Proceed Only Against Defendant Sergeant R. Cox on Plaintiff's Claim for Excessive Force Under the Eighth Amendment, and All Other Claims and Defendants be Dismissed signed by Magistrate Judge Gary S. Austin on 8/17/2009. Referred to Judge Ishii. Objections to F&R due by 9/21/2009. (Jessen, A)
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(PC) Thomas v. CA Dept. of Corrections and Rehabilitation, et al. Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN THOMAS, 12 13 14 15 1:07-cv-01165-AWI-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT SERGEANT R. COX ON PLAINTIFF’S CLAIM FOR EXCESSIVE FORCE UNDER THE EIGHTH AMENDMENT, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED vs. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., 16 Defendants. OBJECTIONS, IF ANY, DUE IN 30 DAYS / 17 18 Plaintiff John Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the amended 20 complaint filed by Plaintiff on November 19, 2007. (Doc. 11.) The amended complaint names the 21 California Department of Corrections and Rehabilitation (“CDCR”), R. Cox (Sergeant), Carrillo 22 (Correctional Officer), A. Hedgpeth (Warden), S. L. Kays (Assistant Warden), J.D. Soto (Captain), 23 Donald Schroeder (Lieutenant), S. Simpson (Lieutenant), L. Garcia (Medical Technical Assistant), and 24 A. Diza-Albarran (Correctional Officer) as defendants, and alleges claims for excessive force under the 25 Eighth Amendment. 26 The Court screened Plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915A and found that 27 it states a cognizable claim for relief under section 1983 against defendant Sergeant R. Cox only, for 28 excessive force under the Eighth Amendment. On July 23, 2009, Plaintiff was given leave to either file 1 Dockets.Justia.com 1 a second amended complaint, or in the alternative, to notify the Court that he does not wish to file a 2 second amended complaint and instead wishes to proceed only on the claim identified by the Court as 3 viable/cognizable in the Court’s order. (Doc. 17.) On August 13, 2009, Plaintiff filed written notice 4 to the Court that he does not wish to file a second amended complaint and only wishes to proceed on 5 the claim found cognizable by the Court. (Doc. 18.) 6 Based on the foregoing, it is HEREBY RECOMMENDED that: 7 1. 8 This action proceed only against Sergeant R. Cox, for excessive force under the Eighth Amendment; 9 2. All remaining claims and defendants be dismissed from this action; and 10 3. Plaintiff's claims against defendants the California Department of Corrections and 11 Rehabilitation (“CDCR”), Carrillo (Correctional Officer), A. Hedgpeth (Warden), S. L. 12 Kays (Assistant Warden), J.D. Soto (Captain), Donald Schroeder (Lieutenant), S. 13 Simpson (Lieutenant), L. Garcia (Medical Technical Assistant), and A. Diza-Albarran 14 (Correctional Officer) be dismissed from this action based on Plaintiff's failure to state 15 any claims upon which relief may be granted against them. 16 These Findings and Recommendations will be submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 18 after being served with these Findings and Recommendations, Plaintiff may file written objections with 19 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 21 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 IT IS SO ORDERED. 24 Dated: 6i0kij August 17, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2
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