(PC) Mansour v. North Kern State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MUSTAFFA MANSOUR, No. 1:22-cv-1054 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. CERTAIN CLAIMS AND DEFENDANTS 14 NORTH KERN STATE PRISON, et al., (Doc. 28) 15 Defendants. 16 17 Mustaffa Mansour is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action filed pursuant to 42 U.S.C. § 1983. The assigned magistrate judge found Plaintiff 19 failed to state cognizable claims for deliberate indifference to serious medical needs and failure to 20 protect. (Doc. 24 at 7-10.) The magistrate judge observed that Plaintiff seeks monetary damages 21 from North Kern State Prison and the CDCR, which were entitled to Eleventh Amendment 22 immunity. (Id. at 6.) However, the magistrate judge determined Plaintiff stated a cognizable 23 claim for excessive force against Correctional Officer Luken. (Id. at 6-7.) 24 The Court granted Plaintiff the opportunity to either file an amended complaint or notify 25 the Court of his willingness to proceed only upon the cognizable claim against Luken. (Doc. 24 26 at 10-11.) Plaintiff did not file an amended complaint. On December 27, 2022, Plaintiff 27 informed the Court that he was willing to proceed on the cognizable claim. (See Doc. 25.) 28 Accordingly, on January 3, 2023, the magistrate judge recommended “all claims and defendants 1 | be dismissed, except for Plaintiffs Eighth Amendment excessive force claim against defendant 2 | Luken.” (Doc. 28 at 2.) 3 The Court granted Plaintiff 14 days from the date of service to file any objections to the 4 | Findings and Recommendations (Doc. 28 at 2), which were served by mail on January 3, 2023. 5 | In addition, the Court informed Plaintiff that the “failure to file objections within the specified 6 | time may result in the waiver of rights on appeal.” (/d., citing Wilkerson v. Wheeler, 772 F.3d 7 | 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Plaintiff 8 | has not filed objections or otherwise responded to the Findings and Recommendations, and the 9 | time to do so has expired. 10 According to 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court performed a de 11 | novo review of this case. Having carefully reviewed the entire matter, the Court concludes the 12 | Findings and Recommendations are supported by the record and proper analysis. Thus, the Court 13 | ORDERS: 14 1. The Findings and Recommendations issued on January 3, 2023 (Doc. 28) are 15 ADOPTED in full. 16 2. The action SHALL proceed only upon Plaintiffs claim for Eighth Amendment 17 excessive force against defendant Luken; all other claims are dismissed. 18 3. Defendants North Kern State Prison and California Department of Corrections are 19 DISMISSED. 20 4. The Clerk of Court is directed to update the docket to reflect the dismissal of 21 defendants North Kern State Prison and California Department of Corrections. 22 73 IT IS SO ORDERED. 24 | Dated: _ February 17, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 25 26 27 28