(PC) Delphin v. Morley ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY DELPHIN, Case No. 1:19-cv-01076-NONE-SKO (PC) 12 Plaintiff, ORDER WITHDRAWING FIRST AMENDED COMPLAINT 13 v. (Doc. 41) 14 J. MORLEY, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. TO DISMISS CLAIMS AND DEFENDANTS 16 (Doc. 1) 17 14-DAY DEADLINE 18 19 On January 27, 2021, the undersigned issued findings and recommendations, 20 recommending that Defendants’ motion to partially dismiss the complaint (Doc. 23) be granted. 21 (Doc. 34.) On March 26, 2021, District Judge Dale A. Drozd adopted the findings and 22 recommendations in full, dismissing the claims against Defendants Hammonds and Whitson with 23 leave to amend. (Doc. 37.) 24 On April 19, 2021, Plaintiff filed a first amended complaint. (Doc. 41.) However, on April 25 26, 2021, Plaintiff filed a notice that he wishes to proceed only on the claims of excessive force 26 and/or failure to intercede against Defendants Morley, Villalobos, Banuelos, and Brown, and on 27 the claims of deliberate indifference against Defendants Brown and Stewart. (Doc. 42.) /// 1 Therefore, the Court issued an order on April 27, 2021, directing Plaintiff to clarify 2 whether he wants to proceed on his first amended complaint, or whether he instead wishes to 3 proceed on his original complaint, subject to the prior dismissal of the claims against Defendants 4 Hammonds and Whitson. (Doc. 43.) On May 6, 2021, Plaintiff filed a response to the order, in 5 which he states that he “wish[es] to withdraw [his] first amended complaint [a]nd proceed only on 6 the claims of excessive force and/or failure to intercede against Defendants Banuelos, Morley, 7 Villalobos, Brown, and claims of deliberate indifference . . . against Defendants Brown and 8 Stewart in [his] original complaint.” (Doc. 44.) 9 Accordingly, Plaintiff’s first amended complaint (Doc. 41) is WITHDRAWN; and, the 10 Court RECOMMENDS that: 11 1. Defendants Hammonds and Whitson and the claims against them be DISMISSED 12 without leave to amend; and, 13 2. This case proceed on Plaintiff’s original complaint for claims of excessive force 14 and/or failure to intercede against Defendants Morley, Villalobos, Banuelos, and 15 Brown, and for claims of deliberate indifference to serious medical needs against 16 Defendants Brown and Stewart, pursuant to 42 U.S.C. § 1983. 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 19 service of these Findings and Recommendations, Plaintiff may file written objections with the 20 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Failure to file objections within the specified time may result in waiver of 22 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 23 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 Sheila K. Oberto 26 Dated: May 10, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 27