-GSA (PC) Thompson v. The State of California et al, No. 1:2007cv01299 - Document 31 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Action Proceed Only Against Defendants Tucker, Green, Lee, Hernandez, Rincon, Deathridge, Huckabay, Thompson, and Melendez, and All Other Claims and Defendants be Dismissed, re 25 Second Amended Complaint, signed by Magistrate Judge Gary S. Austin on 4/19/11. Objections, If Any, Due In 30 Days. Referred to Judge O'Neill (Gonzalez, R)
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-GSA (PC) Thompson v. The State of California et al Doc. 31 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAHN G. THOMPSON, 12 13 14 1:07-cv-01299-LJO-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS TUCKER, GREEN, LEE, HERNANDEZ, RINCON, DEATHRIDGE, HUCKABAY, THOMPSON, AND MELENDEZ, AND ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED vs. STATE OF CALIFORNIA, et al., 15 Defendants. 16 OBJECTIONS, IF ANY, DUE IN 30 DAYS 17 / 18 19 Rahn G. Thompson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the Second Amended 21 Complaint filed by Plaintiff on November 10, 2009. (Doc. 25.) The Second Amended Complaint 22 names defendants Sergeant (“Sgt.”) N. Green, Sgt. D. Huckabay, RN Ms. Davis, Med Tech Mr. 23 Chapman, and Correctional Officers (“C/O”s) W. Tucker, D. Thompson, J. Melendez, M. Hernandez, 24 M. E. Rincon, T. Lee, Deathridge, and H. Martinez, and alleges claims for adverse conditions of 25 confinement, failure to protect, excessive force, and retaliation. 26 The Court screened Plaintiff’s Second Amended Complaint pursuant to 28 U.S.C. § 1915A and 27 found that it states cognizable claims for relief under section 1983 against defendant Tucker for 28 subjecting Plaintiff to adverse conditions of confinement; against defendants Tucker, Green, Lee, 1 Dockets.Justia.com 1 Rincon, Hernandez, Deathridge, and Huckabay for failure to protect Plaintiff; against defendants Tucker, 2 Green, and Huckabay for retaliation; and against defendants Tucker, Thompson, and Melendez for using 3 excessive force against Plaintiff. On March 24, 2011, Plaintiff was given leave to either file a Third 4 Amended Complaint, or in the alternative, to notify the Court that he does not wish to file a Third 5 Amended Complaint and instead wishes to proceed only on the claims identified by the Court as 6 viable/cognizable in the Court’s order. (Doc. 27.) On April 18, 2011, Plaintiff filed written notice to 7 the Court that he wishes to proceed only on the claims found cognizable by the Court. (Doc. 29.) 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. This action proceed against defendant Tucker for subjecting Plaintiff to adverse 10 conditions of confinement; against defendants Tucker, Green, Lee, Rincon, Hernandez, 11 Deathridge, and Huckabay for failure to protect Plaintiff; against defendants Tucker, 12 Green, and Huckabay for retaliation; and against defendants Tucker, Thompson, and 13 Melendez for using excessive force against Plaintiff; 14 2. All remaining claims and defendants be dismissed from this action; and 15 3. Defendants RN Ms. Davis, Med Tech Mr. Chapman, and H. Martinez be dismissed from 16 this action based on Plaintiff's failure to state any claims upon which relief may be 17 granted against them. 18 These Findings and Recommendations will be submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days 20 after being served with these Findings and Recommendations, Plaintiff may file written objections with 21 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 22 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 23 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 26 IT IS SO ORDERED. 27 Dated: 6i0kij April 19, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 28 2