(PC) McKenna v. Cisneros ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD PHILLIP MCKENNA, No. 2:22-cv-01294-KJM-CKD P 12 Plaintiff, 13 v. FINDINGS & RECOMMENDATIONS 14 T. CISNEROS, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 By order filed April 11, 2023, the court screened plaintiff’s second amended complaint. 21 ECF No. 53. The undersigned dismissed the Eighth Amendment excessive force claims alleged 22 to have occurred on February 18, 2021 involving defendants Cisneros, Leahy, Garcia, Tyler, 23 Coronado, Sayama, Diaz, Brown, Dunn, Valdez and Knudson, but granted plaintiff leave to 24 amend these claims within thirty days. ECF No. 53 at 11. Plaintiff was granted an extension of 25 time to file objections to the Findings and Recommendations that were included in the April 11, 26 2023 court order. ECF No. 56. The elapsed time period has now expired and plaintiff has not 27 filed any objections or a third amended complaint. Plaintiff was advised in the April 11, 2023 28 order that his failure to file an amended complaint would result in a recommendation that this 1 | action be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure with respect to 2 || these claims. See ECF No. 53 at 11. 3 Accordingly, IT IS HEREBY RECOMMENDED that the Eighth Amendment excessive 4 | force claims alleged to have occurred on February 18, 2021 involving defendants Cisneros, 5 || Leahy, Garcia, Tyler, Coronado, Sayama, Diaz, Brown, Dunn, Valdez and Knudson be dismissed 6 || without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within fourteen days 9 || after being served with these findings and recommendations, plaintiff may file written objections 10 || with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 12 | failure to file objections within the specified time may waive the right to appeal the District 13 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 || Dated: June 22, 2023 fed) / dha MIG f- A. CAROLYNK.DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 12/mcke1 294. fta 23 24 25 26 27 28