(PC) Dauwalder v. Atherton et al, No. 1:2024cv00523 - Document 10 (E.D. Cal. 2024)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims signed by Magistrate Judge Sheila K. Oberto on 10/23/2024. 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 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL DAUWALDER, 12 13 14 Plaintiff, v. Case No.: 1:24-cv-00523-JLT-SKO FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 14-DAY OBJECTION PERIOD J. ATHERTON, et al., 15 Defendants. 16 17 18 Plaintiff Daniel Dauwalder is proceeding pro se in this civil rights action pursuant to 42 U.S.C. section 1983. 19 I. 20 Following screening of Plaintiff’s complaint, the Court found Plaintiff stated plausible INTRODUCTION 21 Eighth Amendment excessive force claims against Defendants Atherton and Perez, and deliberate 22 indifference to serious medical needs claims against Defendants Davydov and Garmendia; 23 however, Plaintiff failed to allege any other cognizable claim. (Doc. 7 at 3-12.) Plaintiff was 24 directed to do one of the following: (1) to notify the Court in writing that he did not wish to file a 25 first amended complaint and was willing to proceed only on the Eighth Amendment excessive 26 force claims against Defendants Atherton and Perez and deliberate indifference to serious medical 27 needs claims against Defendants Davydov and Garmendia; the remaining claims against any 28 defendant to be dismissed; or (2) to file a first amended complaint curing the deficiencies 1 identified by the Court; or (3) to file a notice of voluntary dismissal. (Id. at 13-14.) 2 On October 21, 2024, Plaintiff filed a notice indicating he was “electing to proceed 3 forward w/cognizable claims …” as identified in the Court’s First Screening Order. (See Doc. 9.) 4 II. DISCUSSION 5 For the reasons set forth in the Court’s First Screening Order (Doc. 7) issued September 6 19, 2024, the Court will recommend this action proceed only on Plaintiff’s Eighth Amendment 7 excessive force claims against Defendants Atherton and Perez and deliberate indifference to 8 serious medical needs claims against Defendants Davydov and Garmendia, and that the remaining 9 claims be dismissed. 10 III. CONCLUSION AND RECOMMENDATIONS 11 Accordingly, the Court RECOMMENDS that: 12 1. This action PROCEED only on Plaintiff’s Eighth Amendment excessive force claims 13 against Defendants Atherton and Perez and deliberate indifference to serious medical 14 needs claims against Defendants Davydov and Garmendia; and 15 2. Any remaining claims in Plaintiff’s complaint against any defendant be DISMISSED. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with a copy of these Findings and Recommendations, a party may file written 19 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 20 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 21 without leave of Court and good cause shown. The Court will not consider exhibits attached to 22 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 23 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 24 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 25 may be disregarded by the District Judge when reviewing these Findings and Recommendations 26 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 27 // 28 // 2 1 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 2 (9th Cir. 2014). 3 4 5 6 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto October 23, 2024 . UNITED STATES MAGISTRATE JUDGE 7 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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