Opinion
1:22-cv-00457 ADA-CDB (PC)
04-25-2023
CHRISTOPHER BRANDON DAVIS, Plaintiff, v. M. PORTILLO, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS
14-DAY OBJECTION PERIOD
Plaintiff Christopher Brandon Davis is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983.
I. RELEVANT PROCEDURAL BACKGROUND
On April 10, 2023, this Court issued its First Screening Order. (Doc. 19.) The Court found Plaintiff's first amended complaint (Doc. 12) stated the following cognizable claims: (1) First Amendment retaliation claims against Defendant Portillo (claims one & four) and Defendant Brown (claim three); (2) an Eighth Amendment excessive force claim against Defendant Portillo (claim two); (3) an Eighth Amendment failure to protect claim against Defendant Molina (claim one); and (4) a due process clause violation against Defendant Brown (claim three). (Doc. 19 at 420.) However, the Court found Plaintiff's first amended complaint failed to state any other cognizable claim against any other defendant. (Id. at 20.) Plaintiff was given 21 days to elect one of the following options: (1) to file a second amended complaint curing the deficiencies identified in the order; (2) to notify the Court of his willingness to proceed only on the claims found cognizable by the Court; or (3) to file a notice of voluntary dismissal. (Id. at 21.)
On April 24, 2023, Plaintiff filed a document titled “Response to First Screening Order.” (See Doc. 21.) Plaintiff advises he does not wish to file a second amended complaint and is willing to proceed on the claims found cognizable by the Court in its First Screening Order. (Id.).
II. FINDINGS AND RECOMMENDATIONS
Accordingly, and for the reasons set forth in the Court's First Screening Order (Doc. 19), the Court RECOMMENDS that:
1. This action PROCEED on the following: (a) First Amendment retaliation claims against Defendant Portillo (claims one & four) and Defendant Brown (claim three); (b) an Eighth Amendment excessive force claim against Defendant Portillo (claim two); (c) an Eighth Amendment failure to protect claim against Defendant Molina (claim one); and (d) a due process clause violation against Defendant Brown (claim three), in their individual capacities, pursuant to 42 U.S.C. § 1983; and
2. The remaining claims in Plaintiff's first amended complaint be DISMISSED.
These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(1). Within 14 days of the date of service of these Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge's Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).
IT IS SO ORDERED.