(PC) Robinson v. Davey et al, No. 1:2017cv01524 - Document 46 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action Proceed Only Against Defendant German for Use of Excessive Force and Against Defendants Peterson and Gonzales-Thompson for Inadequate Medical Care Under the Eighth Amendment and That All Other Claims and Defendants be Dismissed re 24 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 1/31/2019. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. ROBINSON, 12 13 14 15 16 17 18 Plaintiff, vs. DAVE DAVEY, et al., Defendants. 1:17-cv-01524-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT GERMAN FOR USE OF EXCESSIVE FORCE, AND AGAINST DEFENDANTS PETERSON AND GONZALES-THOMPSON FOR INADEQUATE MEDICAL CARE UNDER THE EIGHTH AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 14 DAYS 19 20 21 Anthony L. Robinson (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. 23 Complaint commencing this action on November 15, 2017. (ECF No. 1.) On July 2, 2018, 24 Plaintiff filed the First Amended Complaint. (ECF No. 24.) Plaintiff filed the 25 The First Amended Complaint names as defendants, Dave Davey (Warden), 26 Lieutenant (Lt.) Munoz, Correctional Officer (C/O) K. Welch, C/O H. German, Jr., C/O N. J. 27 Blevins, C/O J. D. Wilson, S. Gonzales-Thompson (LVN), Lt. A. V. Johnson, Doe Defendants, 28 and Sergeant (Sgt.) A. Peterson (collectively, “Defendants”), and brings claims for violation of 1 1 due process and equal protection, excessive force, denial of medical care, negligence, false 2 reports, conspiracy, and cover-up of wrongdoing. 3 The court screened the First Amended Complaint and found that it states cognizable 4 claims under the Eighth Amendment against defendant German for use of excessive force, and 5 against defendants Peterson and Gonzales-Thompson for inadequate medical care. (ECF No. 6 29.) On October 29, 2018, the court issued a screening order requiring Plaintiff to either (1) 7 file a Second Amended Complaint, or (2) notify the court that he is willing to proceed only 8 with the claims found cognizable by the court. (Id.) 9 10 On January 30, 2019, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 45.) 11 Based on the foregoing, it is HEREBY RECOMMENDED that: 12 1. This action proceed only on Plaintiff’s claims against defendant German for use 13 of excessive force, and against defendants Peterson and Gonzales-Thompson for 14 inadequate medical care, under the Eighth Amendment; 15 2. All remaining claims and defendants be dismissed from this action; 16 3. Plaintiff’s claims for violation of due process and equal protection, negligence, 17 false reports, conspiracy, and cover-up of wrongdoing be dismissed from this 18 action based on Plaintiff's failure to state claims upon which relief may be 19 granted; 20 4. Defendants Davey, Munoz, Welch, Blevins, Wilson, Johnson, and the Doe 21 Defendants be dismissed from this action based on Plaintiff’s failure to state 22 claims against them upon which relief may be granted; and 23 24 5. This case be referred back to the Magistrate Judge for further proceedings, including initiation of service of process. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 27 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 28 may file written objections with the Court. The document should be captioned “Objections to 2 1 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 2 objections within the specified time may waive the right to appeal the District Court’s order. 3 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 6 7 IT IS SO ORDERED. Dated: January 31, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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