Opinion
2:19-cv-1461 AC P
06-08-2021
KENDALL BURTON, Plaintiff, v. JIMENEZ, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
Plaintiff, a state prisoner represented by counsel and proceeding in forma pauperis, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 18, 2021, the undersigned screened the complaint pursuant to 28 U.S.C. § 1915A and provided plaintiff with the options of either amending it or proceeding on the cognizable claims that the court identified. See ECF No. 7 at 11. At that time, plaintiff was sent a form to return to the court indicating how he wished to proceed, and he was cautioned that failure to return the form to the court within fourteen days would result in the court recommending dismissal of the claims that had been found insufficient. See id. at 11-12. More than fourteen days have passed, and plaintiff has neither filed the form notice on how to proceed, nor has he responded to the court's order in any way. Plaintiff has thus elected not to avail himself of the opportunity to amend his complaint.
For the reasons set forth in the initial screening order (ECF No. 7), which are incorporated by reference here, the undersigned recommends that this action proceed on Claims One (battery) and Two (excessive force in violation of plaintiff s Eighth Amendment rights) against Officers Jimenez, Troth, Orpesa and Chavez only. All other claims and defendants should be dismissed for the reasons stated at ECF No. 7.
Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a District Court Judge to this action.
IT IS FURTHER RECOMMENDED that:
1. Defendant Officer Katz be DISMISSED from this action for failure to state claims against him upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1);
2. Claims Three through Eight, and all defendants named therein, be DISMISSED for failure to state claims upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)(1); and
3. This action proceed on Claims One (battery) and Two (excessive force in violation of plaintiffs Eighth Amendment rights) against Officers Jimenez, Troth, Orpesa and Chavez only.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a 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).