(PC) Lewis v. Velasquez-Miranda ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARONTA TYRONE LEWIS, ) Case No.: 1:21-cv-00188-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 M. VELASQUEZ-MIRANDA, et al., ) ) FINDINGS AND RECOMMENDATIONS 15 Defendants. ) RECOMMENDING DISMISSAL OF CERTAIN ) CLAIMS 16 ) ) (ECF Nos. 8, 9) 17 ) 18 Plaintiff Daronta Tyrone Lewis is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant action on February 16, 2021. 21 On April 12, 2021, the Court screened Plaintiff’s complaint, found that Plaintiff stated a 22 cognizable retaliation claim against Defendants J. Velasquez-Miranda and N. Holets, a cognizable 23 excessive force claim against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton, and 24 cognizable state law claims for battery and assault against Defendants J. Velasquez-Miranda, N. 25 Holets, Lara, and Shelton, and granted Plaintiff the opportunity to file an amended complaint or notify 26 the Court of his intent to proceed only on the claims found to be cognizable. (ECF No. 8.) 27 On April 28, 2021, Plaintiff notified the Court that he wishes to proceed only on the claims 28 found to be cognizable and to dismiss all other claims. (ECF No. 9.) Therefore, the Court will 1 || recommend that this action proceed on the retaliation claim against Defendants J. Velasquez-Mirand< 2 || and N. Holets, the excessive force claim against Defendants J. Velasquez-Miranda, N. Holets, Lara, 3 || and Shelton, and the state law claims for battery and assault against Defendants J. Velasquez-Mirand: 4 ||N. Holets, Lara, and Shelton. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell 5 || Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 6 || 2010). 7 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 8 || Judge to this action. 9 Further, it is HEREBY RECOMMENDED that: 10 1. This action proceed against Defendants J. Velasquez-Miranda and N. Holets for 11 retaliation, against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton for 12 excessive force, and against Defendants J. Velasquez-Miranda, N. Holets, Lara, and 13 Shelton for assault and battery; and 14 2. All other claims be dismissed from the action for failure to state a cognizable claim fo: 15 relief. 16 These Findings and Recommendations will be submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 18 || after being served with these Findings and Recommendations, Plaintiff may file written objections 19 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 21 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 22 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 ||IT IS SO ORDERED. A (re |! Dated: _ April 29, 2021 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28