(PC) Cotton v. Medina et al, No. 1:2022cv00568 - Document 11 (E.D. Cal. 2022)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Certain Claims and Defendants be Dismissed signed by Magistrate Judge Erica P. Grosjean on 08/15/2022. Referred to Judge Thurston; Objections to F&R due within Fourteen-Days. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 WESLEY COTTON, Plaintiff, 12 13 14 15 v. Defendants. 20 (ECF Nos. 1 & 9) OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 17 19 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT CERTAIN CLAIMS AND DEFENDANTS BE DISMISSED SGT. MEDINA, et al., 16 18 Case No. 1:22-cv-00568-EPG (PC) Wesley Cotton (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, which includes state law claim(s). Plaintiff filed the complaint commencing this action on May 11, 2022. (ECF No. 1). 21 The Court screened Plaintiff’s complaint. (ECF No. 9). The Court found that only the 22 following claims should proceed past the screening stage: Plaintiff’s Eighth Amendment 23 excessive force claim against Doe Defendant(s) and his failure to protect claim against 24 defendant MeDina. (Id.). 25 The Court gave Plaintiff thirty days to either: “a. File a First Amended Complaint; b. 26 Notify the Court in writing that he does not want to file an amended complaint and instead 27 wants to proceed only on his Eighth Amendment excessive force claim against Doe 28 Defendant(s) and his failure to protect claim against defendant Me[D]ina; or c. Notify the Court 1 1 in writing that he wants to stand on his complaint.” (Id. at 12). On August 11, 2022, Plaintiff 2 filed what the Court construes as a notice that he wants to proceed only on his Eighth 3 Amendment excessive force claim against Doe Defendant(s) and his failure to protect claim 4 against defendant MeDina. (ECF No. 10). 5 Accordingly, for the reasons set forth in the Court’s screening order that was entered on 6 August 2, 2022 (ECF No. 9), and because Plaintiff has notified the Court that he wants to 7 proceed only on his Eighth Amendment excessive force claim against Doe Defendant(s) and 8 his failure to protect claim against defendant MeDina (ECF No. 10), it is HEREBY 9 RECOMMENDED that all claims and defendants be dismissed, except for Plaintiff’s Eighth 10 Amendment excessive force claim against Doe Defendant(s) and his failure to protect claim 11 against defendant MeDina. 12 These findings and recommendations will be submitted to the United States district 13 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 14 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 15 file written objections with the Court. The document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 17 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 18 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 19 (9th Cir. 1991)). 20 21 22 23 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge to this case. IT IS SO ORDERED. Dated: August 15, 2022 /s/ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2

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