(PC) Thompson v. Garcia-Fernandez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TOMMY LEE THOMPSON, ) Case No.: 1:22-cv-1208 JLT BAM (PC) ) 12 Plaintiff, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS AND DISMISSING 13 v. ) ESPANOZA AS A DEFENDANT ) 14 GARCIA-FERNANDEZ, et al., ) (Doc. 26) ) 15 Defendants. ) ) 16 ) 17 Tommy Lee Thompson is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action under 42 U.S.C. § 1983. Plaintiff seeks to hold defendants E. Garcia-Fernandez, Bravo, 19 Guerro, C. Castillo, Gonzales, and Espanoza for excessive force in violation of the Eighth 20 Amendment. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 21 636(b)(1)(B) and Local Rule 302. 22 On May 24, 2023, the magistrate found Plaintiff failed to serve defendant Espanoza as required 23 under Rule 4(m) of the Federal Rules of Civil Procedure, and recommended dismissal of Espanoza as 24 a defendant. (Doc. 26.) The Findings and Recommendations were served on the parties the same day 25 and contained notice that any objections were to be filed within 14 days after service. (Id. at 3.) In 26 addition, the parties were informed the “failure to file objections within the specified time may result 27 in the waiver of the ‘right to challenge the magistrate’s factual findings’ on appeal.” (Id., citing 28 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014), Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 1 |} Cir. 1991). No objections were filed, and the deadline to do so has expired. 2 According to 28 U.S.C. § 636 (b)(1)(C), this Court conducted a de novo review of the case. 3 || Having carefully reviewed the entire file, the Court concludes the magistrate judge’s Findings and 4 || Recommendations are supported by the record and by proper analysis. Thus, the Court ORDERS: 5 1. The Findings and Recommendations issued on May 24, 2023 (Doc. 26), are 6 ADOPTED in full. 7 2. Defendant Espanoza is DISMISSED without prejudice. 8 3. This action shall proceed only against defendants E. Garcia-Fernandez, Bravo, Guerro 9 C. Castillo, and Gonzales for excessive force in violation of the Eighth Amendment. 10 4. The Clerk of Court is directed to update the docket and terminate Espanoza as a 11 defendant. 12 5. This action is referred to the magistrate judge for further proceedings. 13 14 IS SO ORDERED. 15 || ated: _ June 30, 2023 ( LAW pA L. wan 16 TED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28