(PC) Drumwright v. Huckleberry ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARQUISE LOUIS DRUMWRIGHT, Case No.: 1:22-cv-01410-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS CERTAIN CLAIMS AND DEFENDANT HUCKLEBERRY 14 C. HUCKLEBERRY, et al., 14-DAY OBJECTION DEADLINE 15 Defendants. Clerk of the Court to Assign District Judge 16 17 Plaintiff Marquise Louis Drumwright is proceeding pro se and in forma pauperis in this 18 civil rights action pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 The Court issued its First Screening Order on July 5, 2023. (Doc. 11.) The Court found 21 Plaintiff’s complaint stated Eighth Amendment failure to protect (claim one) and excessive force 22 (claim two) claims, and a First Amendment retaliation claim (claim three), against Defendant 23 Gomez. (Id. at 9.) It also found the complaint failed to state any other cognizable claim against 24 any other defendant. (Id.) Plaintiff was directed to elect one of three options within 21 days: (1) 25 notify the Court in writing that he does not wish to file a first amended complaint and he is 26 willing to proceed only on the claims found cognizable by the Court; (2) file a first amended 27 complaint curing the deficiencies identified by the Court in the screening order; or (3) file a 1 On July 21, 2023, Plaintiff a Notice to Proceed on the Cognizable Claims Identified by the 2 Court. (Doc. 12.) Plaintiff indicated he does not wish to file a first amended complaint and wishes 3 to proceed on his cognizable Eighth and First Amendment claims against Defendant Gomez. (Id.) 4 II. CONCLUSION AND RECOMMENDATION 5 Accordingly, the Clerk of the Court is directed to randomly assign a district judge to this 6 action. Further, and for the reasons set forth in the Court’s First Screening Order (Doc. 11), the 7 Court RECOMMENDS that: 8 1. Defendant C. Huckleberry be DISMISSED from this action; and, 9 2. The action PROCEED on the Eighth Amendment failure to protect claim against 10 Defendant Gomez (claim one), the Eighth Amendment excessive force claim against 11 Defendant Gomez (claim two), and the First Amendment retaliation claim against 12 Defendant Gomez (claim three), as alleged in Plaintiff’s complaint; the remaining 13 claims to be dismissed. 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 16 service of these Findings and Recommendations, a party may file written objections with the 17 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 18 Recommendations.” Failure to file objections within the specified time may result in waiver of 19 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 20 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: July 25, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 24 25 26 27