(PC) Cato v. Denning ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CATO, JR., Case No. 1:19-cv-00951-LJO-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 13 v. CERTAIN CLAIMS 14 M. DENNING, et al., (ECF Nos. 10, 11) 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 Plaintiff James Cato, Jr. is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. 19 On August 23, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff 20 stated a cognizable claim against Defendants Denning and Hillman, in their individual capacity, 21 for violation of Plaintiff’s right to receive mail under the First Amendment, but failed to state any 22 other cognizable claims. (ECF No. 10.) The Court ordered Plaintiff to file either a first amended 23 complaint or a written notice informing the Court that he is willing to proceed only on the 24 cognizable claim. (Id. at 5.) 25 On September 3, 2019, Plaintiff filed a written notice of his intent to proceed only on the 26 cognizable claim identified by the Court. (ECF No. 11.) 27 Accordingly, the Court will recommend that this action proceed only against Defendants 28 Denning and Hillman, in their individual capacity, for violation of Plaintiff’s right to receive mail 1 | under the First Amendment, and that all other claims be dismissed. Fed. R. Civ. P. 8(a); Ashcroft 2 | v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); 3 | Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). 4 Based on the foregoing, it is HEREBY RECOMMENDED that: 5 1. This action proceed on Plaintiff's complaint, filed on July 11, 2019, (ECF No. 1), 6 against Defendants Denning and Hillman, in their individual capacity, for violation 7 of Plaintiff's right to receive mail under the First Amendment; and 8 2. All other claims be dismissed from the action for failure to state a cognizable 9 claim for relief. 10 These Findings and Recommendations will be submitted to the United States District 11 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 12 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written 13 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 15 || specified time may result in the waiver of the “right to challenge the magistrate’s factual 16 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 17 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 IT IS SO ORDERED. OF. nf ee 21 | Dated: _September 4, 2019 _ Of UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28