(PC) Taylor v. Commissioner of the California Department of Corrections and Rehabilitation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRESTON TAYLOR, ) Case No.: 1:20-cv-00798-NONE-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING PLAINTIFF’S MOTION TO WITHDRAW THE FIRST AMENDED 14 COMMISSIONER OF CALIFORNIA ) COMPLAINT BE GRANTED, AND DISMISSING DEPARTMENT OF CORRECTIONS AND ) CERTAIN CLAIMS AND DEFENDANTS 15 REHABILITATION, et al., ) ) [ECF Nos. 8, 12, 14] 16 ) Defendants. ) 17 ) 18 Plaintiff Preston Taylor is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On June 23, 2020, the undersigned screened Plaintiff’s complaint and found that Plaintiff 21 stated a cognizable claim for excessive force against Defendant P. Turner and a cognizable claim for 22 deliberate indifference to a serious medical need against Defendant John Doe. (ECF No. 8.) 23 However, Plaintiff was advised that he failed to state any other cognizable claims. (Id.) Therefore, 24 Plaintiff was advised that he could file an amended complaint or a notice of intent to proceed on the 25 claim found to be cognizable. (Id.) 26 On July 17, 2020, Plaintiff filed a motion for leave to file a first amended complaint, along 27 with a first amended complaint. (ECF Nos. 11, 12.) 28 /// 1 On July 22, 2020, the Court denied Plaintiff’s motion for leave to file an amended complaint as 2 unnecessary and moot. (ECF No. 13.) 3 On July 31, 2020, Plaintiff filed a notice indicating that he wishes to proceed on the claims 4 found to be cognizable in the screening order, to dismiss all other claims and defendants, and to 5 withdraw his first amended complaint. (ECF No. 14.) 6 Based on Plaintiff’s July 31, 2020 notice, the Court will recommend that this action proceed 7 against Defendant P. Turner for excessive force and against Defendant John Doe for deliberate 8 indifference to a serious medical need. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 9 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 10 (9th Cir. 2010). The Court will also recommend that Plaintiff’s request to withdraw the first amended 11 complaint filed on July 17, 2020, be granted. 12 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 13 1. This action proceed against Defendant P. Turner for excessive force and against 14 Defendant John Doe for deliberate indifference to a serious medical need in violation 15 of the Eighth Amendment; 16 2. All other claims and defendants be dismissed for failure to state a cognizable claim for 17 relief; and 18 3. Plaintiff’s request to withdraw the first amended complaint filed on July 17, 2020, be 19 granted. 20 These Findings and Recommendations will be submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 22 after being served with these Findings and Recommendations, Plaintiff may file written objections 23 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 24 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 25 /// 26 /// 27 /// 28 /// wOAoOe UV OUINMIN EA VPA MMU PIO VOI He PAY VM VI 1 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 2 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IS SO ORDERED. Al (ee Sl! Dated: _ August 5, 2020 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28