(PC) Maddox v. Yates, et al., No. 1:2007cv01227 - Document 15 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Gary S. Austin on 9/9/2009, Recommending that this 1 Action Proceed Only Against Defendants Battle, Ladd, and Vang on Plaintiff's Eighth Amendment Excessive Force Claims, and All Other Claims and Defendants be Dismissed. Matter referred to Judge Wanger. (Objections to F&R due by 10/13/2009) (Figueroa, O)

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(PC) Maddox v. Yates, et al. Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID MADDOX, 12 13 14 1:07-cv-01227-OWW-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS BATTLE, LADD, AND VANG ON PLAINTIFF’S EIGHTH AMENDMENT EXCESSIVE FORCE CLAIMS, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED vs. JAMES A. YATES, et al., 15 16 Defendants. OBJECTIONS, IF ANY, DUE IN 30 DAYS / 17 18 Plaintiff David Maddox (“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 original complaint 20 filed by Plaintiff on August 23, 2007. (Doc. 1.) The complaint names James A. Yates (Warden), 21 Sergeant John Doe, Correctional Officer (“C/O”) A. Battle, and C/O C. Vang as defendants, and alleges 22 claims for conspiracy, violation of Plaintiff’s rights to Due Process, and excessive force under the Eighth 23 Amendment.1 24 The Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and found that it states 25 cognizable claims for relief under section 1983 against defendants Battle, Doe, and Vang only, for 26 27 28 1 On September 4, 2009, Plaintiff filed written notice identifying the Doe defendant as Sergeant Ladd. (Doc. 13.) In an order filed concurrently with this order, the Clerk was directed to replace the Doe defendant in this action with defendant Sergeant Ladd. 1 Dockets.Justia.com 1 excessive force under the Eighth Amendment. On August 6, 2009, Plaintiff was given leave to either 2 file a first amended complaint, or in the alternative, to notify the Court that he does not wish to file a first 3 amended complaint and instead wishes to proceed only on the claims identified by the Court as 4 viable/cognizable in the Court’s order. (Doc. 12.) On September 4, 2009, Plaintiff filed written notice 5 to the Court that he does not wish to file a first amended complaint and only wishes to proceed on the 6 claims found cognizable by the Court. (Doc. 13.) 7 Based on the foregoing, it is HEREBY RECOMMENDED that: 8 1. 9 This action proceed only against defendants C/O A. Battle, Sergeant Ladd, and C/O C. Vang, for excessive force in violation of the Eighth Amendment; 10 2. All remaining claims and defendants be dismissed from this action; 11 3. Defendant James A. Yates be dismissed from this action based on Plaintiff's failure to 12 13 state any claims upon which relief may be granted against him; and 4. Plaintiff's claims for conspiracy and violation of Due Process be dismissed from this 14 action based on Plaintiff’s failure to state a claim upon which relief may be granted under 15 section 1983. 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 24 IT IS SO ORDERED. Dated: 6i0kij September 9, 2009 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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