(PC) Brown v. Marroquin ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY E. BROWN, 1:21-cv-00087-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 MARROQUIN, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 16 PROCEED ONLY WITH PLAINTIFF’S EXCESSIVE FORCE CLAIMS AGAINST 17 DEFENDANTS C/O MARROQUIN, C/O CAMPBELL, C/O CHAVEZ, AND C/O 18 POMPA; AND ADA CLAIMS AGAINST DEFENDANTS C/O MARROQUIN AND 19 SERGEANT ESPINOSA; THAT ALL OTHER CLAIMS AND DEFENDANTS BE 20 DISMISSED; AND THAT PLAINTIFF’S MOTION FOR PRELIMINARY 21 INJUNCTIVE RELIEF BE DENIED AS MOOT 22 OBJECTIONS, IF ANY, DUE WITHIN 23 FOURTEEN DAYS 24 25 I. FINDINGS 26 Bobby E. Brown (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 27 action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on 28 January 21, 2021. (ECF No. 1.) 1 The Complaint names as defendants Correctional Officer (C/O) Otto Marroquin, C/O 2 Dorius Campbell, C/O D. Chavez, C/O M. Pompa, Sergeant M. Espinosa, John Doe (Medical 3 Personnel, Psy Tech), and Christian Pfeiffer (Warden, KVSP) (collectively, “Defendants”), and 4 brings claims for use of excessive force, failure to intervene, violation of the ADA, minimizing 5 Plaintiff’s injuries as minor, and false reports. Plaintiff also brings a motion for preliminary 6 injunctive relief in the Complaint. 7 The court screened the Complaint and found that it states cognizable claims for use of 8 excessive force against Defendants C/O Marroquin, C/O Campbell, C/O Chavez, and C/O 9 Pompa; and for violation of the ADA against Defendants C/O Marroquin and Sergeant Espinosa. 10 (ECF No. 9.) The court also found that Plaintiff’s motion for preliminary injunctive relief 11 should be denied as moot. (Id.) On November 28, 2022, the court issued a screening order 12 requiring Plaintiff to either (1) file a First Amended Complaint, or (2) notify the court that he is 13 willing to proceed only with the claims found cognizable by the court. (Id.) 14 On December 14, 2022, Plaintiff notified the court that he is willing to proceed only with 15 the claims found cognizable by the court. (ECF No. 10.) 16 II. ORDER, RECOMMENDATIONS AND CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that the Clerk randomly assign a United 18 States District Judge to this case. 19 AND 20 Based on the foregoing, it is HEREBY RECOMMENDED that: 21 1. This action proceed only on Plaintiff’s cognizable claims for use of excessive 22 force against Defendants C/O Marroquin, C/O Campbell, C/O Chavez, and C/O 23 Pompa; and for violation of the ADA against Defendants C/O Marroquin and 24 Sergeant Espinosa; 25 2. All remaining claims and defendants be dismissed from this action; 26 3. Plaintiff’s claims for failure to intervene, for false reports, and for minimizing 27 Plaintiff’s injuries be dismissed from this action based on Plaintiff’s failure to 28 state any claims upon which relief may be granted; 1 4. Defendants John Doe (Medical Personnel, Psy Tech) and Christian Pfeiffer 2 (Warden, KVSP) be dismissed from this action based on Plaintiff’s failure to state 3 any claims against them upon which relief may be granted; 4 5. Plaintiff’s motion for preliminary injunctive relief be denied as moot; and 5 6. This case be referred back to the Magistrate Judge for further proceedings, 6 including initiation of service of process. 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 9 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 10 may file written objections with the Court. The document should be captioned “Objections to 11 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 objections within the specified time may waive the right to appeal the District Court’s order. 13 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 IT IS SO ORDERED. 15 16 Dated: December 15, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28