(PC) Arrant v. Santoro ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MELVIN R. ARRANT, ) Case No.: 1:20-cv-01253-DAD-SAB (PC) ) 10 Plaintiff, ) ) ORDER GRANTING PLAINTIFF’S MOTION FOR 11 v. ) RECONSIDERATION/CLARIFICATION, AND FINDINGS AND RECOMMENDATIONS 12 K ELLY SANTORO, et al., ) ) R CE LACO IMM SM AE NN DD DIN EG F ED NIS DM AI NS TS SA L OF CERTAIN 13 Defendants. ) ) (ECF Nos. 11, 12) 14 ) 15 Plaintiff Melvin R. Arrant is proceeding pro se and in forma pauepris in this civil rights action 16 pursuant to 42 U.S.C. § 1983. 17 On October 30, 2020, the undersigned screened Plaintiff’s complaint and found that Plaintiff 18 stated separate claims for retaliation against Defendant Lozano, Garcia, Dodson, Herrera, Valdez, 19 Felix, Florez, and Chanelo, and separate excessive force claims against Defendants Florez and Tapia. 20 (ECF No. 11.) However, Plaintiff was advised that he failed to state any other cognizable claims. 21 (Id.) Therefore, Plaintiff was advised that he could file an amended complaint or a notice of intent to 22 proceed on the claims found to be cognizable. (Id.) 23 On November 12, 2020, Plaintiff filed a notice of intent to proceed only on the retaliation and 24 excessive force claims and dismiss all other claims and Defendants. (ECF No. 12.) Plaintiff also 25 seeks reconsideration and clarification as to whether he has stated a cognizable retaliation claim 26 against Defendant Tapia based on his allegations that he used excessive force because he filed 27 complaints. Upon review of the factual allegations in the complaint, the Court agrees with Plaintiff 28 that he has stated a cognizable retaliation claim against Defendant Tapia for using excessive force in 1 || retaliation for filing a grievance and complaint against his partner. (Compl. at 22-23; ECF No. 11 at 2 || 8-9.) 3 Based on Plaintiff's November 12, 2020 notice, the Court will recommend that this action 4 || proceed against Defendants Defendant Lozano, Garcia, Dodson, Herrera, Valdez, Felix, Florez, 5 || Chanelo, and Tapia for retaliation as explained herein and in the Court’s October 30, 2020 screening 6 || order, and separate excessive force claims against Defendants Florez and Tapia. Fed. R. Civ. P. 8(a); 7 || Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 8 || (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 9 Accordingly, it is HEREBY RECOMMENDED that: 10 1. This action proceed against Defendants Lozano, Garcia, Dodson, Herrera, Valdez, 11 Felix, Florez, Chanelo, and Tapia for retaliation, and separate excessive force claims 12 against Defendants Florez and Tapia; and 13 2. All other claims and Defendants be dismissed for failure to state a cognizable claim 14 for relief. 15 These Findings and Recommendations will be submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 17 || after being served with these Findings and Recommendations, Plaintiff may file written objections 18 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 19 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 20 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 21 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 ||} IT IS SO ORDERED. A (re 24 ll pated: _ November 17, 2020 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28