(PC) Fearence v. Schulteis et al, No. 1:2008cv00615 - Document 65 (E.D. Cal. 2013)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that this Action Proceed only Against Defendants Hopkins, Busby, Davis, Duffy, and Beckett, and that other Claims and Defendants be Dismissed signed by Magistrate Judge Gary S. Austin on 12/05/2013. Referred to Judge O'Neill; Objections to F&R due by 1/9/2014. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JAQUES FEARANCE, 11 12 13 14 Plaintiff, vs. L. L. SCHULTEIS, et al., Defendants. 15 1:08-cv-00615-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANTS HOPKINS, BUSBY, DAVIS, DUFFY, AND BECKETT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 30 DAYS 16 17 Jaques Fearence (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 19 commencing this action on May 1, 2008. (Doc. 1.) The case now proceeds on the Third 20 Amended Complaint filed by Plaintiff on November 22, 2013. (Doc. 64.) The Third Amended 21 Complaint names as defendants Lieutenant S. Hopkins, J. Busby, T.C. Davis, D. Duffy, and 22 J.M. Beckett, and alleges various claims including excessive force, failure to protect, verbal 23 harassment, and conspiracy. 24 The court screened the Third Amended Complaint and found viable claims against 25 defendants Hopkins and Busby for use of excessive force, against defendants Hopkins, Davis, 26 Duffy, and Beckett for failure to protect Plaintiff and against defendants Hopkins, Busby, 27 Davis, Duffy, and Beckett for conspiracy to use excessive force. The court also found that this 28 is a damages only action. 1 1 Based on the foregoing, it is HEREBY RECOMMENDED that: 2 1. This action proceed only against defendants Hopkins and Busby for use of 3 excessive force, against defendants Hopkins, Davis, Duffy, and Beckett for 4 failure to protect Plaintiff, and against defendants Hopkins, Busby, Davis, 5 Duffy, and Beckett for conspiracy to use excessive force.; 6 2. All remaining claims and defendants be dismissed from this action; and 7 3. Plaintiff’s claims for verbal harassment and injunctive relief be dismissed from this action based on Plaintiff’s failure to state a claim under § 1983. 8 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 11 thirty (30) days after being served with these Findings and Recommendations, any party may 12 file written objections with the Court. The document should be captioned AObjections to 13 Magistrate Judge=s Findings and Recommendations.@ Any reply to the objections shall be 14 served and filed within ten days after service of the objections. The parties are advised that 15 failure to file objections within the specified time may waive the right to appeal the District 16 Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 IT IS SO ORDERED. Dated: December 5, 2013 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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