(PC) Howard v. Hildebrand et al, No. 1:2017cv01397 - Document 13 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Certain Claims and Defendants signed by Magistrate Judge Stanley A. Boone on 04/04/2018. Referred to Judge O'Neill; Objections to F&R due by 4/23/2018.(Flores, E)
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(PC) Howard v. Hildebrand et al Doc. 13 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 ISRAEL HOWARD, Case No. 1:17-cv-01397-SAB (PC) 8 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS [ECF Nos. 1, 11, 12] 9 v. 10 M. HILDEBRAND, et al., 11 FOURTEEN (14) DAY DEADLINE Defendants. 12 13 Plaintiff Israel Howard is a state prisoner appearing pro se and in forma pauperis in this 14 civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 15 Magistrate Judge pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 16 On March 16, 2018, the Court screened Plaintiff’s complaint and found that it stated a 17 cognizable claim for (1) excessive force in violation of the Eighth Amendment against Sergeants 18 Hildebrand and Garza; (2) deliberate indifference to a serious medical need in violation of the 19 Eighth Amendment against Sergeants Hildebrand and Garza, and Officer Marquez; (3) Eighth 20 Amendment unconstitutional conditions of confinement against Sergeant Hildebrand and Officer 21 Marquez; and (4) retaliation in violation of the First Amendment against Sergeant Hildebrand. 22 (ECF No. 11.) The Court also identified deficiencies in the complaint, and granted Plaintiff an 23 opportunity to amend his complaint, or to notify the Court that he is agreeable to proceeding only 24 on the claims identified as cognizable. (Id.) 25 On April 2, 2018, Plaintiff notified the Court that he will not amend his complaint, and 26 agrees to proceed only on the claims found to be cognizable in the Court’s March 16, 2018 27 screening order. (ECF No. 12.) As a result, the Court will recommend that this action only 28 proceed on the claims identified above, and all other claims and defendants be dismissed for the 1 Dockets.Justia.com 1 reasons stated in the Court’s March 16, 2018 screening order. Fed. R. Civ. P. 8(a); Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); 3 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 4 Accordingly, it is HEREBY RECOMMENDED that: 5 1. This action proceed on Plaintiff’s claim for (1) excessive force in violation of the 6 Eighth Amendment against Sergeants Hildebrand and Garza; (2) deliberate indifference to a 7 serious medical need in violation of the Eighth Amendment against Sergeants Hildebrand and 8 Garza, and Officer Marquez; (3) Eighth Amendment unconstitutional conditions of confinement 9 against Sergeant Hildebrand and Officer Marquez; and (4) retaliation in violation of the First 10 Amendment against Sergeant Hildebrand; and 2. 11 All other claims and defendants be dismissed for failure to state a claim upon 12 which relief could be granted for the reasons explained in the Court’s March 16, 2018 order. These findings and recommendations will be submitted to the United States District 13 14 Judge assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within 15 fourteen (14) days after being served with these Finding and Recommendations, Plaintiff may 16 file written objections with the Court. The document should be captioned “Objections to 17 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 19 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 IT IS SO ORDERED. 22 Dated: April 4, 2018 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2