Opinion
1:21-cv-1675 JLT SKO (PC)
12-22-2023
RICHARD LEE THOMAS, Plaintiff, v. KERN VALLEY STATE PRISON, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING CERTAIN CLAIMS AND DEFENDANTS, AND DIRECTING THE CLERK OF COURT TO UPDATE THE DOCKET (DOC. 17)
Richard Lee Thomas seeks to hold the defendants liable for civil rights violations pursuant to 42 U.S.C. § 1983. The magistrate judge screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A(a), and found Plaintiff stated cognizable claim for: (1) excessive force in violation of the Eighth Amendment against Peralta and Sandoval, and (2) failure to intervene against Melendez. However, Plaintiff's remaining claims were not cognizable. (Doc. 14.)
After Plaintiff notified the Court that he did not wish to amend the complaint (Doc. 15 at 5), the magistrate judge recommended the action proceed only on the cognizable claims against Peralta, Sandoval, and Meledez; and all other claims and defendants be dismissed. (Doc. 17.) The Court served the Findings and Recommendations on Plaintiff and notified him any objections must be filed within 14 days. (Id. at 2-3.) In addition, the Court informed Plaintiff that the “[f]ailure to file objections within the specified time may result in waiver of rights on appeal.” (Id. at 3, citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Plaintiff did not file objections, and the time to do so expired.
According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of the case. Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. Accordingly, the Court ORDERS:
1. The Findings and Recommendations issued November 27, 2023 (Doc. 17) are ADOPTED in full.
2. This action PROCEEDS only on Plaintiff's Eighth Amendment excessive force claims against Defendants Peralta and Sandoval and failure to intervene claim against Defendant Melendez, as stated in the First Amended Complaint.
3. The remaining claims in Plaintiff's First Amended Complaint are DISMISSED.
4. The following defendants are DISMISSED from this action:
a. Kern Valley State Prison
b. California Department of Corrections and Rehabilitation
c. People of the State of California
d. “Bertha”
e. J. Larez
f. J. Gurrez
g. “Pita”
h. Betanhurt
5. The Clerk of Court is directed to update the following names on the docket:
a. “Sandovn” be corrected to “Sandoval”
b. “Maendrez” be corrected to “Melendez”
6. This matter is referred to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.