Opinion
1:22-cv-1054 JLT EPG (PC)
02-17-2023
MUSTAFFA MANSOUR, Plaintiff, v. NORTH KERN STATE PRISON, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS
(DOC. 28)
Mustaffa Mansour is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. The assigned magistrate judge found Plaintiff failed to state cognizable claims for deliberate indifference to serious medical needs and failure to protect. (Doc. 24 at 7-10.) The magistrate judge observed that Plaintiff seeks monetary damages from North Kern State Prison and the CDCR, which were entitled to Eleventh Amendment immunity. (Id. at 6.) However, the magistrate judge determined Plaintiff stated a cognizable claim for excessive force against Correctional Officer Luken. (Id. at 6-7.)
The Court granted Plaintiff the opportunity to either file an amended complaint or notify the Court of his willingness to proceed only upon the cognizable claim against Luken. (Doc. 24 at 10-11.) Plaintiff did not file an amended complaint. On December 27, 2022, Plaintiff informed the Court that he was willing to proceed on the cognizable claim. (See Doc. 25.) Accordingly, on January 3, 2023, the magistrate judge recommended “all claims and defendants be dismissed, except for Plaintiff's Eighth Amendment excessive force claim against defendant Luken” (Doc. 28 at 2.)
The Court granted Plaintiff 14 days from the date of service to file any objections to the Findings and Recommendations (Doc. 28 at 2), which were served by mail on January 3, 2023. In addition, the Court informed Plaintiff that the “failure to file objections within the specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Plaintiff has not filed objections or otherwise responded to the Findings and Recommendations, and the time to do so has expired.
According to 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court performed a de novo review of this case. Having carefully reviewed the entire matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS:
1. The Findings and Recommendations issued on January 3, 2023 (Doc. 28) are ADOPTED in full.
2. The action SHALL proceed only upon Plaintiff's claim for Eighth Amendment excessive force against defendant Luken; all other claims are dismissed.
3. Defendants North Kern State Prison and California Department of Corrections are DISMISSED.
4. The Clerk of Court is directed to update the docket to reflect the dismissal of defendants North Kern State Prison and California Department of Corrections.
IT IS SO ORDERED.