(PC) McDowell v. Atkinson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JONATHAN DEWITT MCDOWELL, Case No. 1:20-cv-01036-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANT AND CLAIMS 13 v. 14 KERN VALLEY STATE PRISON, et al., 14-DAY DEADLINE 15 Defendants. Clerk of the Court to Assign a District Judge 16 17 On February 11, 2021, the Court screened Plaintiff’s complaint and found that it states 18 cognizable claims of excessive force against Defendants Atkinson, Furlong, Leora, Harman, 19 Hernandez, and Johnson in their individual capacities, as well as a claim of failure to intercede 20 against Defendant Johnson in his individual capacity. (Doc. 11.) The Court found that the 21 remaining claims were not cognizable. (Id.) The Court therefore directed Plaintiff, within 21 days, 22 to file a first amended complaint curing the deficiencies in his pleading or to notify the Court that 23 he wishes to proceed only on the claims found cognizable. (Id. at 10.) The Court cautioned 24 Plaintiff that failure to comply with the order would result in a recommendation “that this action 25 proceed only on the claims found cognizable … and that all other claims and defendants be 26 dismissed.” (Id.) 27 Plaintiff has not filed a first amended complaint or otherwise responded to the Court’s 1 order, and the time to do so has passed. 2 Accordingly, the Court RECOMMENDS that (1) Defendant Kern Valley State Prison be 3 DISMISSED, and (2) the claims in Plaintiff’s complaint be DISMISSED, except for the claims of 4 excessive force against Defendants Atkinson, Furlong, Leora, Harman, Hernandez, and Johnson 5 in their individual capacities, and the claim of failure to intercede against Defendant Johnson in 6 his individual capacity, pursuant to 42 U.S.C. § 1983. The Court DIRECTS the Clerk of the Court 7 to assign a district judge to this action. 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 10 service of these Findings and Recommendations, Plaintiff may file written objections with the 11 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 12 Recommendations.” Failure to file objections within the specified time may result in waiver of 13 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 Sheila K. Oberto 17 Dated: March 18, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27