(PC) Mackey v. Goss ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY MACKEY, No. 1:18-cv-00988-DAD-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF BE PERMITTED TO PROCEED ON COGNIZABLE CLAIM AND 14 D. GOSS, et al., THAT NON-COGNIZABLE CLAIMS BE DISMISSED WITHOUT PREJUDICE 15 Defendants. OBJECTIONS, IF ANY, DUE IN 14 DAYS 16 17 Plaintiff Tommy Mackey is a state prisoner proceeding without counsel in this civil rights 18 action brought under 42 U.S.C. § 1983. On July 3, 2019, the court screened plaintiff’s complaint 19 and found that plaintiff stated excessive force claims against defendants R. Rodriguez, D. 20 Rodriguez, Pompa, Garcia, Schulte, and Martinez. See ECF No. 15. The court gave plaintiff 21 three options: (1) proceed only on the claims found cognizable, (2) amend the complaint to add 22 additional facts to make out additional claims, or (3) stand on the current complaint subject to 23 dismissal of claims and defendants. On July 26, 2019, plaintiff filed a notice indicating his desire 24 to proceed only on the claims identified as cognizable. ECF No. 16. Therefore, we recommend 25 that his remaining claims be dismissed without prejudice. 26 RECOMMENDATION 27 Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a 28 magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams 1 | v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a 2 | magistrate judge’s jurisdiction in this case, so any dismissal of a claim requires an order from a 3 | district judge. /d. Thus, the undersigned submits the following findings and recommendations 4 | under 28 U.S.C. § 636(b)(1): 5 1. Plaintiff states cognizable excessive force claims against defendants R. Rodriguez, D. 6 Rodriguez, Pompa, Garcia, Schulte, and Martinez. 7 2. Plaintiff's remaining claims should be dismissed without prejudice. 8 Within fourteen (14) days of service of these findings and recommendations, plaintiff may 9 | file written objections with the court. If plaintiff files such objections, he should do so in a 10 | document captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 11 | Plaintiff is advised that failure to file objections within the specified time may result in the waiver 12 | of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 13 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 1s IT IS SO ORDERED. 16 ( Caan Dated: _ August 2, 2019 17 UNI STATES MAGISTRATE JUDGE 18 19 20 No. 205. 21 22 23 24 25 26 27 28