(PC) Washington v. Hicks ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRACYE BENARD WASHINGTON, 1:19-cv-00156-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 13 vs. PROCEED ONLY AGAINST DEFENDANTS HICKS AND ROCHA FOR 14 DAVID HICKS, et al., USE OF EXCESSIVE FORCE IN VIOLATION OF THE EIGHTH 15 Defendants. AMENDMENT, AND THAT ALL OTHER DEFENDANTS AND CLAIMS BE 16 DISMISSED FOR PLAINTIFF’S FAILURE 17 TO STATE A CLAIM 18 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 19 20 Tracye Benard Washington (“Plaintiff”) is a state prisoner proceeding pro se with this 21 civil rights action pursuant to 42 U.S.C. § 1983.1 Plaintiff filed the Complaint commencing this 22 action on February 5, 2019. (ECF No. 1.) The Complaint names as defendants Sergeant David 23 Hicks and Correctional Officer Hipolito Rocha and brings claims for excessive force, failure to 24 protect, violation of equal protection, violations of the Americans with Disabilities Act and the 25 Rehabilitation Act, and violation of the Coleman v. Brown2 consent decree. 26 27 1 On March 7, 2019, Plaintiff paid the $400.00 filing fee in full for this case. (Court Record.) 28 2 Coleman v. Brown, et al., 912 F.Supp 1282 (E.D. Cal., 1995). 1 2 On May 19, 2020, Plaintiff notified the court that he is willing to proceed only with the 3 excessive force claims against defendants Hicks and Rocha found cognizable by the court. (ECF 4 No. 17.) 5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. This action proceed only on Plaintiff’s claims against defendants Sergeant David 7 Hicks and Correctional Officer Hipolito Rocha for use of excessive force in 8 violation of the Eighth Amendment; 9 2. All remaining claims and defendants be dismissed from this action; 10 3. Plaintiff’s claims for failure to protect, violation of equal protection, violations of 11 the ADA and RA, and violation of the Coleman v. Brown consent decree be 12 dismissed from this action based on Plaintiff's failure to state any claims upon 13 which relief may be granted; and 14 4. This case be referred back to the Magistrate Judge for further proceedings, 15 including initiation of service of process. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 18 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 19 may file written objections with the Court. The document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 objections within the specified time may waive the right to appeal the District Court’s order. 22 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 25 Dated: May 20, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28