(PC) Boone v. CSP Corcoran Warden ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EMANUEL BOONE, 1:19-cv-01232-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 CSP CORCORAN WARDEN, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 16 PROCEED ONLY AGAINST DEFENDANTS BURNES, TAPIA, FLORES, BRANDON, 17 DOWDY, BLANCO, AND VEGA FOR USE OF EXCESSIVE FORCE UNDER THE 18 EIGHTH AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE 19 DISMISSED 20 OBJECTIONS, IF ANY, DUE IN 14 DAYS 21 22 Emanuel Boone (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 23 with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 24 commencing this action on September 6, 2019. (ECF No. 1.) On September 2, 2020, the court 25 screened the Complaint and issued an order for Plaintiff to either (1) file an amended complaint 26 or (2) notify the court that he is willing to proceed only with the excessive force claims found 27 cognizable by the court. (ECF No. 12.) On October 5, 2020, Plaintiff filed the First Amended 28 Complaint. (ECF No. 13.) 1 The First Amended Complaint names as defendants the Warden of CSP; Sergeant J. 2 Burnes; Correctional Officer (C/O) D. Tapia; C/O J. Flores; C/O K. Brandon; C/O C. Dowdy; 3 C/O N. Blanco; Manuel Galvan, Jr. (Psychiatric Technician (Psych Tech)); Rajinder Gill (LVN); 4 S. Ramirez (RN); Dr. Edgar Clark; Dr. Ravijot Gill; and C/O E. Vega (collectively, 5 “Defendants”), and brings claims for improper prison appeals process, denial of adequate 6 medical care, excessive force, and failure to intercede. (Id.) 7 On October 7, 2021, the court screened the First Amended Complaint and found that it 8 states claims for use of excessive force against defendants Burnes, Tapia, Flores, Brandon, 9 Dowdy, Blanco, and Vega, but no other § 1983 claims against any of the Defendants. (ECF No. 10 15.) The court issued an order for Plaintiff to either (1) file a Second Amended Complaint or (2) 11 notify the court that he is willing to proceed only with the excessive force claims found 12 cognizable by the court. (Id.) 13 On October 29, 2021, Plaintiff notified the court that he is willing to proceed only with 14 the excessive force claims found cognizable by the court. (ECF No. 16.) 15 Based on the foregoing, it is HEREBY RECOMMENDED that: 16 1. This action proceed only with Plaintiff’s claims against defendants Burnes, Tapia, 17 Flores, Brandon, Dowdy, Blanco, and Vega for use of excessive force in violation 18 of the Eighth Amendment; 19 2. All remaining claims and defendants be dismissed from this action; 20 3. Plaintiff’s claims for improper prison appeals process, denial of adequate medical 21 care, and failure to intercede be dismissed from this action based on Plaintiff's 22 failure to state any claims upon which relief may be granted; 23 4. Defendants Warden of CSP, Manuel Galvan, Jr. (Psychiatric Technician (Psych 24 Tech)); Rajinder Gill (LVN); S. Ramirez (RN); Dr. Edgar Clark; and Dr. Ravijot 25 Gill be dismissed from this action based on Plaintiff’s failure to state any claims 26 against them upon which relief may be granted; and 27 5. This case be referred back to the Magistrate Judge for further proceedings, 28 including initiation of service of process. 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 3 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 4 may file written objections with the Court. The document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may waive the right to appeal the District Court’s order. 7 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 8 IT IS SO ORDERED. 9 10 Dated: November 5, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28