(PC) Harris v. Munoz ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EARNEST S. HARRIS, Case No. 1:21-cv-01800-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 13 v. DEFENDANTS 14 E. MUNOZ, et al., Clerk of the Court to Assign District Judge 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 Plaintiff Earnest S. Harris is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On February 10, 2023, this Court issued its First Screening Order. (Doc. 8.) The Court 21 found Plaintiff’s complaint plausibly states the following cognizable claims: (1) Eighth 22 Amendment excessive force against Defendants Munoz and Arreguin; (2) Eighth Amendment 23 deliberate indifference to serious medical needs against Defendant Romero; (3) First Amendment 24 retaliation against Defendants Munoz and Arreguin; and (4) a due process violation for a false 25 rules violation report against Defendant Munoz. (Id. at 3-13.) Plaintiff did not state any other 26 cognizable claim against any other named defendant. (Id.) Plaintiff was given 21 days to elect one 27 of the following options: (1) file a first amended complaint curing the deficiencies identified in the screening order; (2) notify the Court of his willingness to proceed only on the claims found 1 cognizable by the Court in the screening order; or (3) file a notice of voluntary dismissal. (Id. at 2 13-14.) 3 On February 27, 2023, Plaintiff filed notice electing to proceed only on the claims found 4 cognizable by the Court: “excessive force against Defendants Munoz and Arreguin, … deliberate 5 indifferences to serious medical needs against Defendant Romero, retaliation claims against 6 Munoz and Arreguin, and … due process violation of false rules violation report against 7 Defendant Munoz.” (See Doc. 9.) 8 II. FINDINGS AND RECOMMENDATIONS 9 Accordingly, the Clerk of the Court is directed to randomly assign a district judge to this 10 action. Further, and for the reasons set forth in the Court’s First Screening Order (Doc. 8), the 11 Court RECOMMENDS that: 12 1. Defendant N. Huerta be DISMISSED; and, 13 2. The claims in Plaintiff’s complaint be DISMISSED, except for the (1) excessive force 14 claims against Defendants Munoz and Arreguin; (2) a deliberate indifference to 15 serious medical needs claim against Defendant Romero; (3) retaliation claims against 16 Defendants Munoz and Arreguin; and (4) a due process violation for a false rules 17 violation report against Defendant Munoz. 18 These Findings and Recommendations will be submitted to the United States District 19 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 20 service of these Findings and Recommendations, a party may file written objections with the 21 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 22 Recommendations.” Failure to file objections within the specified time may result in waiver of 23 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 24 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 25 IT IS SO ORDERED. 26 27 Dated: March 6, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE