(PC) McDowell v. Rivera et al, No. 1:2013cv01797 - Document 15 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS That Certain Claims and Defendants Be Dismissed 13 , signed by Magistrate Judge Michael J. Seng on 3/27/14: Fourteen (14) Day Deadline. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY MCDOWELL, 12 13 14 15 Plaintiff, v. R. RIVERA, et al., Defendants. CASE NO. 1:13-cv-01797-LJO-MJS FINDINGS AND RECOMMENDATIONS THAT CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED (ECF NO. 13) FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff Jerry McDowell, a state prisoner proceeding pro se and in forma 18 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 6, 2013. 19 (ECF No. 1.) On December 31, 2013, after reviewing Plaintiff’s Complaint, the Court 20 ordered Plaintiff to either file an amended complaint or notify the Court of his willingness 21 to proceed only on his Eighth Amendment claim against Defendants Sandoval, Garza, 22 Fernandez, Guzman, Sanchez, and Acolla and First Amendment claim against 23 Defendants Acolla and Fernandez. (ECF No. 7.) On March 5, 2014, Plaintiff notified the 24 Court of his willingness to forgo an amended complaint and proceed with his cognizable 25 claims. (ECF No. 13.) 26 Accordingly, all claims and Defendants in Plaintiffs Complaint, except for his 27 Eighth Amendment claim against Defendants Sandoval, Garza, Fernandez, Guzman, 28 1 1 Sanchez, and Acolla and First Amendment claim against Defendants Acolla and 2 Fernandez, should now be dismissed. 3 The Court hereby RECOMMENDS the following: 4 1. Plaintiff be allowed to proceed on his Eighth Amendment claim against 5 Defendants Sandoval, Garza, Fernandez, Guzman, Sanchez, and Acolla and First 6 Amendment claim against Defendants Acolla and Fernandez; 7 8 9 2. Plaintiff’s Eighth Amendment claims against Defendants Rivera and Patel be dismissed; and 3. Defendants Rivera and Patel be dismissed from the action. 10 These Findings and Recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 12 Within fourteen (14) days after being served with these Findings and Recommendations, 13 any party may file written objections with the Court and serve a copy on all parties. Such 14 a document should be captioned "Objections to Magistrate Judge's Findings and 15 Recommendations." Any reply to the objections shall be served and filed within ten (10) 16 days after service of the objections. The parties are advised that failure to file objections 17 within the specified time may waive the right to appeal the District Court's order. 18 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 IT IS SO ORDERED. Dated: March 27, 2014 /s/ 22 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2
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