(PC) Venegas v. Mendoza ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SALVADOR VENEGAS, Case No. 1:21-cv-00962-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT CERTAIN 13 v. CLAIMS AND DEFENDANTS BE DISMISSED 14 E. MENDOZA, et al., (ECF Nos. 1, 11, 12) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE 18 19 Plaintiff Salvador Venegas (“Plaintiff”) is a state inmate proceeding pro se and in forma 20 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 21 Plaintiff filed the complaint commencing this action on June 21, 2021.1 (ECF No. 1.) On August 13, 2021, the Court screened Plaintiff’s complaint and found that Plaintiff stated claims 22 for violations of the following constitutional rights: Eighth Amendment excessive force against 23 Defendants Mendoza, Grimsley, Cornejo, Navarro, Layshot, and Mattingly; First Amendment 24 retaliation against Defendants Mendoza, Grimsley, Cornejo, Navarro, and John Doe 1; Fourteenth 25 Amendment procedural due process against John Doe 2; Eighth Amendment deliberate 26 indifference to serious medical needs against Defendant Cahapisan; Eighth Amendment 27 1 Plaintiff’s complaint was unsigned. (See ECF No. 1.) On August 26, 2021, Plaintiff submitted a signed version of 28 the complaint. (ECF No. 12.) 1 conditions of confinement against Defendant Muñoz; and First Amendment access to mail against 2 Defendants Mendoza, Grimsley, Cornejo, and Navarro. (ECF No. 10.) The Court found that 3 Plaintiff failed to state any other claims. (Id.) Plaintiff was given thirty days to either: 4 a. File a First Amended Complaint; b. Notify the Court in writing that he wishes to proceed only on the following 5 claims: Eighth Amendment excessive force against Defendants Mendoza, Grimsley, Cornejo, Navarro, Layshot, and Mattingly; First Amendment retaliation 6 against Defendants Mendoza, Grimsley, Cornejo, Navarro, and John Doe 1; Fourteenth Amendment procedural due process against John Doe 2; Eighth 7 Amendment deliberate indifference to serious medical needs against Defendant Cahapisan; Eighth Amendment conditions of confinement against Defendant 8 Muñoz; and First Amendment access to mail against Defendants Mendoza, Grimsley, Cornejo, and Navarro; or 9 c. Notify the Court in writing that he wants to stand on this complaint. 10 (Id. at 27-28.) On August 17, 2021, Plaintiff filed a notice stating that he wishes to proceed only 11 on the claims found cognizable in the screening order. (ECF No. 11.) 12 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is directed to assign a 13 district judge to this case. 14 Further, for the reasons set forth in the Court’s screening order entered on August 13, 15 2021 (ECF No. 10), and because Plaintiff has notified the Court that he wants to proceed only on 16 the claims found cognizable in the screening order (ECF No. 11), it is HEREBY 17 RECOMMENDED that: 18 1. All claims and defendants be dismissed, except for the following claims: Eighth 19 Amendment excessive force against Defendants Mendoza, Grimsley, Cornejo, 20 Navarro, Layshot, and Mattingly; First Amendment retaliation against Defendants Mendoza, Grimsley, Cornejo, Navarro, and John Doe 1; Fourteenth Amendment 21 procedural due process against John Doe 2; Eighth Amendment deliberate indifference 22 to serious medical needs against Defendant Cahapisan; Eighth Amendment conditions 23 of confinement against Defendant Muñoz; and First Amendment access to mail 24 against Defendants Mendoza, Grimsley, Cornejo, and Navarro; and 25 2. The Clerk of Court be directed to add Grimsley, John Doe 1, and John Doe 2 as 26 defendants and to terminate Lieutenant Thomas, Preciado, Warden Shirley, Lieutenant 27 Bracken, Lieutenant Brewster, the California Department of Corrections and 28 1 Rehabilitations, and Grimsky as defendants on the docket. 2 These findings and recommendations will be submitted to the United States district judge 3 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 4 | (14) days after being served with these findings and recommendations, Plaintiff may file written 5 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 7 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). ? | IT IS SO ORDERED. 10 1, | Dated: _August 30, 2021 [see ey UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28