(PC) Burton v. Jimenez ( 2021 )


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  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENDALL BURTON, No. 2:19-cv-1461 AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JIMENEZ, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner represented by counsel and proceeding in forma pauperis, has 18 filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a 19 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 18, 2021, the undersigned screened the complaint pursuant to 28 U.S.C. § 1915A 21 and provided plaintiff with the options of either amending it or proceeding on the cognizable 22 claims that the court identified. See ECF No. 7 at 11. At that time, plaintiff was sent a form to 23 return to the court indicating how he wished to proceed, and he was cautioned that failure to 24 return the form to the court within fourteen days would result in the court recommending 25 dismissal of the claims that had been found insufficient. See id. at 11-12. More than fourteen 26 days have passed, and plaintiff has neither filed the form notice on how to proceed, nor has he 27 responded to the court’s order in any way. Plaintiff has thus elected not to avail himself of the 28 opportunity to amend his complaint. ] For the reasons set forth in the initial screening order (ECF No. 7), which are incorporated 2 || by reference here, the undersigned recommends that this action proceed on Claims One (battery) 3 || and Two (excessive force in violation of plaintiff's Eighth Amendment rights) against Officers 4 || Jimenez, Troth, Orpesa and Chavez only. All other claims and defendants should be dismissed 5 || for the reasons stated at ECF No. 7. 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 7 || District Court Judge to this action. 8 IT IS FURTHER RECOMMENDED that: 9 1. Defendant Officer Katz be DISMISSED from this action for failure to state claims 10 || against him upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1); 11 2. Claims Three through Eight, and all defendants named therein, be DISMISSED for 12 | failure to state claims upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1); 13 || and 14 3. This action proceed on Claims One (battery) and Two (excessive force in violation of 15 | plaintiff's Eighth Amendment rights) against Officers Jimenez, Troth, Orpesa and Chavez only. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 18 | after being served with these findings and recommendations, plaintiff may file written objections 19 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 20 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 21 | time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 22 | (9th Cir. 1991). 23 || DATED: June 8, 2021 ~ 24 AMhan—lChnnee ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE 26 27 28

Document Info

Docket Number: 2:19-cv-01461

Filed Date: 6/9/2021

Precedential Status: Precedential

Modified Date: 6/19/2024