Opinion
Case No.: 1:19-cv-00373-AWI-SAB (PC)
05-29-2019
ALLEN HAMMLER, Plaintiff, v. CLARK, et.al., Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF'S FIRST AMENDMENT CLAIM AGAINST CERTAIN DEFENDANTS AND DISMISSING ALL OTHER CLAIMS AND DEFENDANTS [ECF Nos. 26, 27]
Plaintiff Allen Hammler is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On May 17, 2019, the undersigned screened Plaintiff's complaint and found that Plaintiff stated a cognizable claim against Defendants Gamboa, Peterson, Garza, Saucedo and Uhlik for violation of the First Amendment. (ECF No. 26.) The Court granted Plaintiff the opportunity to file a first amended complaint or notify the Court of his intent to proceed only on the excessive force claim.
On May 28, 2019, Plaintiff notified the Court of his intent to proceed only on the claim under the First Amendment against Defendants Gamboa, Peterson, Garza, Saucedo and Uhlik. (ECF No. 27.) In his notice Plaintiff points out that Defendant Clark is the Warden at California State Prison, Corcoran and not the Warden California State Prison Sacramento, as identified in the Court's screening order. Therefore, based on Plaintiff's allegations in his notice and operative complaint, Plaintiff states a cognizable claim against Defendant Warden Clark. Accordingly, the Court will recommend that this action proceed against Defendants Gamboa, Peterson, Garza, Saucedo and Uhlik, and Clark for violation of the First Amendment right to practice religion, and all other claims and Defendants be dismissed from the action. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
Accordingly, it is HEREBY RECOMMENDED that:
1. This action shall proceed against Defendants Gamboa, Peterson, Garza, Saucedo and Uhlik, and Clark for violation of the First Amendment; and
2. All other claims and Defendants be dismissed from the action for failure to state a cognizable claim for relief.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. Dated: May 29 , 2019
/s/_________
UNITED STATES MAGISTRATE JUDGE