Opinion
1:14-cv-01690-LJO-GSA-PC
09-21-2016
VANCE EDWARD JOHNSON, Plaintiff, v. BARAJAS, et al., Defendant.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT BARAJAS ON PLAINTIFF'S EIGHTH AMENDMENT CONDITIONS OF CONFINEMENT CLAIM, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED OBJECTIONS, IF ANY, DUE IN 20 DAYS
Vance Edward Johnson ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The case now proceeds on the First Amended Complaint filed by Plaintiff on August 21, 2015. (ECF No. 9.) The First Amended Complaint names sole defendant Correctional Officer M. Barajas and alleges claims for adverse conditions of confinement under the Eighth Amendment and equal protection violations under the Fourteenth Amendment.
The Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A and found that it states a cognizable Eighth Amendment conditions of confinement claim against defendant Barajas, but no other claims. (ECF No. 11.) On June 24, 2016, Plaintiff was granted leave to either file a Second Amended Complaint or notify the Court that he is willing to proceed only on the claim found cognizable by the Court. (Id.) On September 19, 2016, Plaintiff filed a notice informing the Court that he is willing to proceed only on the cognizable Eighth Amendment claim against defendant Barajas. (ECF No. 18.)
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only against defendant Barajas, on Plaintiff's Eighth Amendment claim for adverse conditions of confinement;
2. All remaining claims and defendants be dismissed from this action; and
3. Plaintiff's Fourteenth Amendment equal protection claim be dismissed from this action based on Plaintiff's failure to state a claim.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: September 21 , 2016
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE