Opinion
1:20-cv-00476-GSA-PC
09-23-2021
LAMAR BROOKS, Plaintiff, v. ARRIZOLA, et al., Defendants.
ORDER FOR CLERK TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS CASE
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT C/O ARRIZOLA FOR USE OF EXCESSIVE FORCE IN VIOLATION OF THE EIGHTH AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED
GARY S. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Lamar Brooks (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on April 3, 2020. (ECF No. 1.) The Complaint names as defendants Correctional Officer (C/O) Arrizola, Sergeant Stane, and Lieutenant Fitzpatrick (collectively, “Defendants”), and brings claims for excessive force, inadequate medical care, improper prison appeals process, cover-up of wrongdoing, and state law claims.
The court screened the Complaint and found that it states a cognizable claim under the Eighth Amendment against defendant C/O Arrizola for use of excessive force in violation of the Eighth Amendment, but no other claims against any of the Defendants. On August 9, 2021, the court issued a screening order requiring Plaintiff to either: (1) file a First Amended Complaint, or (2) notify the court that he is willing to proceed only with the excessive force claim found cognizable by the court. (ECF No. 13.)
On August 30, 2021, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 14.)
Based on the foregoing, the Clerk is HEREBY DIRECTED to randomly assign a district judge to this action; and
The court HEREBY RECOMMENDS that:
1. This action proceed only on Plaintiff's claim against defendant C/O Arrizola for use of excessive force in violation of the Eighth Amendment;
2. All remaining claims and defendants be dismissed from this action;
3. Plaintiff's claims for inadequate medical care, improper prison appeals process, cover-up of wrongdoing, and state law claims be dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted;
4. Plaintiff's state law claims be dismissed, without prejudice to bringing the claims to state court;
5. Defendants Sergeant Stane and Lieutenant Fitzpatrick be dismissed from this action based on Plaintiff's failure to state any claims against them upon which relief may be granted; and
6. This case be referred back to the Magistrate Judge for further proceedings, including initiation of service of process.
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)(1). Within fourteen (14) days after the date of service of 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.