(PC) Thomas v. Kern Valley State Prison et al, No. 1:2021cv01675 - Document 17 (E.D. Cal. 2023)

Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants re: 13 Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 11/27/2023. Referred to Judge Thurston; Objections to F&R due within 14 days. (Rivera, O)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD LEE THOMAS, 12 Plaintiff, 13 14 v. KERN VALLEY STATE PRISON, et al., 15 Defendants. Case No.: 1:21-cv-01675-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS 14-DAY OBJECTION PERIOD Clerk of the Court to Assign District Judge 16 17 18 19 Plaintiff Richard Lee Thomas is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 20 I. 21 On November 2, 2023, the Court issued its Second Screening Order. (Doc. 14.) The Court RELEVANT BACKGROUND 22 found that Plaintiff stated cognizable Eighth Amendment excessive force claims against 23 Defendants Peralta and Sandoval, and an Eighth Amendment failure to intervene claim against 24 Defendant Melendez, but failed to state any other cognizable claim against any other defendant. 25 (Id. at 3-6.) Plaintiff was directed to do one of the following within 21 days: (1) notify the Court 26 he did not wish to file a second amended complaint and instead was willing to proceed only on 27 the Eighth Amendment excessive force claims against Defendants Peralta and Sandoval and 28 failure to intervene claim against Defendant Melendez, the remaining claims to be dismissed; or 1 (2) file a second amended complaint curing the deficiencies identified in the Court’s order, or (3) 2 file a notice of voluntary dismissal. (Id. at 7-8.) 3 On November 21, 2023, Plaintiff filed a notice indicating his wish to proceed only on the 4 claims found cognizable by the Court. (See Doc. 15 at 5 [“I am not intending to file a second 5 amended complaint, and am willing to proceed in my Eighth Amendment claims against 6 Corrections Officers Peralta, Sandoval and Melendez”].) 7 II. 8 The Clerk of the Court is DIRECTED to assign a District Judge to this action. 9 Further, for the reasons given above, the Court RECOMMENDS that: 10 ORDERS AND RECOMMENDATIONS 1. This action PROCEED only on Plaintiff’s Eighth Amendment excessive force claims 11 against Defendants Peralta and Sandoval and failure to intervene claim against 12 Defendant Melendez, and the remaining claims and defendants to be dismissed; 13 2. The following individuals or entities be DISMISSED from this action: 14 a. Kern Valley State Prison 15 b. California Department of Corrections and Rehabilitation 16 c. People of the State of California 17 d. “Bertha” 18 e. J. Larez 19 f. J. Gurrez 20 g. “Pita” 21 h. Betanhurt; and 22 3. The following corrections be made on the docket regarding the spelling of 23 Defendants’ names as reflected in Plaintiff’s first amended complaint: 24 a. “Sandovn” be corrected to “Sandoval” 25 b. “Maendrez” be corrected to “Melendez.” 26 These Findings and Recommendations will be submitted to the district judge assigned to 27 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 28 Findings and Recommendations, a party may file written objections with the Court. The 2 1 document should be captioned, “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Failure to file objections within the specified time may result in waiver of 3 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 4 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. 7 Dated: 8 /s/ Sheila K. Oberto November 27, 2023 . UNITED STATES MAGISTRATE JUDGE 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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