(PC) McDowell v. Atkinson, et al., No. 1:2020cv01036 - Document 54 (E.D. Cal. 2022)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the claims in Plaintiff's Second Amended Complaint, asserted against newly added Defendants Cudal and Welch only, be Dismissed, except for the claim of excessive force against Defendant Welch, and t he Claim of deliberate indifference to serious medical need against Defendant Cudal, in their individual capacities, pursuant to 42:1983 - as set forth in the Second Amended Complaint re 51 ; referred to Judge Drozd, signed by Magistrate Judge Sheila K. Oberto on 06/14/2022. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN DEWITT MCDOWELL, 12 Plaintiff, 13 v. 14 KERN VALLEY STATE PRISON, et al., 15 Defendants. Case No. 1:20-cv-01036-DAD-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS NON-COGNIZABLE CLAIMS AGAINST DEFENDANTS CUDAL AND WELCH 14-DAY DEADLINE 16 On May 24, 2022, the Court screened Plaintiff’s second amended complaint, focused 17 18 solely on the claims asserted against newly added Defendants J. Cudal and Welch,1 and found it 19 states cognizable claims of excessive force against Defendant Welch and deliberate indifference 20 to serious medical need against Defendant Cudal, in their individual capacities. (Doc. 52.) The 21 Court found that the remaining claims asserted against newly added Defendants Cudal and Welch 22 were not cognizable. (Id.) The Court therefore directed Plaintiff, within 21 days, to file a third 23 amended complaint curing the deficiencies in his pleading, or to notify the Court that he wishes to 24 proceed only on the claims found cognizable as to the newly added Defendants, or to voluntarily 25 dismiss the action. (Id. at 10.) 26 // 27 28 Defendants Atkinson, Furlong, Harman, Johnson, and Loera answered Plaintiff’s complaint on July 28, 2021. (See Docs. 28 & 30.) Defendant Hernandez was dismissed from the action on October 20, 2021. (Doc. 40.) 1 1 2 On June 8, 2022, Plaintiff filed notice that he wished to proceed on the claims found cognizable against newly added Defendants Cudal and Welch. (Doc. 53.) Accordingly, the Court RECOMMENDS that the claims in Plaintiff’s second amended 3 4 complaint, asserted against newly added Defendants Cudal and Welch only, be DISMISSED, 5 except for the claim of excessive force against Defendant Welch, and the claim of deliberate 6 indifference to serious medical need against Defendant Cudal, in their individual capacities, 7 pursuant to 42 U.S.C. § 1983—as set forth in the second amended complaint. 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 10 service of these Findings and Recommendations, Plaintiff may file written objections with the 11 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Failure to file objections within the specified time may result in waiver of 13 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto June 14, 2022 . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2
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