(PC) Thomas v. Kern Valley State Prison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD LEE THOMAS, Case No.: 1:21-cv-01675-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS CERTAIN CLAIMS AND DEFENDANTS 14 KERN VALLEY STATE PRISON, et al., 14-DAY OBJECTION PERIOD 15 Defendants. Clerk of the Court to Assign District Judge 16 17 18 Plaintiff Richard Lee Thomas is proceeding pro se and in forma pauperis in this civil 19 rights action brought pursuant to 42 U.S.C. § 1983. 20 I. RELEVANT BACKGROUND 21 On November 2, 2023, the Court issued its Second Screening Order. (Doc. 14.) The Court 22 found that Plaintiff stated cognizable Eighth Amendment excessive force claims against 23 Defendants Peralta and Sandoval, and an Eighth Amendment failure to intervene claim against 24 Defendant Melendez, but failed to state any other cognizable claim against any other defendant. 25 (Id. at 3-6.) Plaintiff was directed to do one of the following within 21 days: (1) notify the Court 26 he did not wish to file a second amended complaint and instead was willing to proceed only on 27 the Eighth Amendment excessive force claims against Defendants Peralta and Sandoval and 1 (2) file a second amended complaint curing the deficiencies identified in the Court’s order, or (3) 2 file a notice of voluntary dismissal. (Id. at 7-8.) 3 On November 21, 2023, Plaintiff filed a notice indicating his wish to proceed only on the 4 claims found cognizable by the Court. (See Doc. 15 at 5 [“I am not intending to file a second 5 amended complaint, and am willing to proceed in my Eighth Amendment claims against 6 Corrections Officers Peralta, Sandoval and Melendez”].) 7 II. ORDERS AND RECOMMENDATIONS 8 The Clerk of the Court is DIRECTED to assign a District Judge to this action. 9 Further, for the reasons given above, the Court RECOMMENDS that: 10 1. This action PROCEED only on Plaintiff’s Eighth Amendment excessive force claims 11 against Defendants Peralta and Sandoval and failure to intervene claim against 12 Defendant Melendez, and the remaining claims and defendants to be dismissed; 13 2. The following individuals or entities be DISMISSED from this action: 14 a. Kern Valley State Prison 15 b. California Department of Corrections and Rehabilitation 16 c. People of the State of California 17 d. “Bertha” 18 e. J. Larez 19 f. J. Gurrez 20 g. “Pita” 21 h. Betanhurt; and 22 3. The following corrections be made on the docket regarding the spelling of 23 Defendants’ names as reflected in Plaintiff’s first amended complaint: 24 a. “Sandovn” be corrected to “Sandoval” 25 b. “Maendrez” be corrected to “Melendez.” 26 These Findings and Recommendations will be submitted to the district judge assigned to 27 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 1 document should be captioned, “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Failure to file objections within the specified time may result in waiver of 3 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 4 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 7 Dated: November 27, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27