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Howell v. Ceballos

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 6, 2020
No. 1:19-cv-01353-DAD-SAB (PC) (E.D. Cal. Mar. 6, 2020)

Opinion

No. 1:19-cv-01353-DAD-SAB (PC)

03-06-2020

KAREEM J. HOWELL, Plaintiff, v. I. CEBALLOS, et al., Defendants.


ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

(Doc. No. 10)

Plaintiff Kareem J. Howell is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 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 October 7, 2019, the assigned magistrate judge screened the complaint and found that plaintiff had stated a cognizable claim against defendant N. Vera for retaliation and deliberate indifference; and against defendant D. Allison for retaliation and deliberate indifference; defendant I. Ceballos for retaliation, excessive force, and deliberate indifference; defendant I. Medina for retaliation and excessive force; defendant D. Fugate for excessive force; and an unidentified correctional officer for retaliation and deliberate indifference. (Doc. No. 8 at 16-17.) However, the magistrate judge also determined that plaintiff's claim against named defendant N. Vera was improperly joined in this action under Rule 18 and 20 because plaintiff's claim against ///// defendant N. Vera did not arise out of the same transaction, occurrence, or series of transactions as the other cognizable claims identified in the complaint. (Id. at 17.)

Plaintiff was granted leave to file an amended complaint or notify the court of his willingness to proceed only on the claims found to be cognizable in the screening order. (Id. at 18.) If plaintiff chose to proceed only on the cognizable claims identified in the screening order, plaintiff was directed to specify whether he wished to proceed on the claim against defendant N. Vera or the claims against the other defendants. (Id.) On October 24, 2019, plaintiff notified the court of his willingness to proceed only on the cognizable claim against defendant N. Vera identified by the magistrate judge in the screening order. (Doc. No. 9.)

Consequently, on November 1, 2019, the assigned magistrate judge issued findings and recommendations, recommending that this action proceed on plaintiff's claim against defendant N. Vera for retaliation and deliberate indifference, and that all of his other claims be dismissed. (Doc. No. 10.) The findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen days after service. (Id. at 2.) No objections have been filed and the time in which to do so has now passed.

The findings and recommendations recommended that all other claims and defendants be dismissed for failure to state a claim. (Doc. No. 10 at 2.) However, given that in the screening order the court concluded that plaintiff has stated other cognizable retaliation claims, those claims will be dismissed without prejudice in accordance with plaintiff's consent. (See Doc. No. 9.) --------

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the findings and recommendations are supported by the record and proper analysis. ///// ///// ///// ///// ///// /////

Accordingly,

1. The findings and recommendations issued on November 1, 2019 (Doc. No. 10) are adopted;

2. This action shall proceed only on plaintiff's claim against defendant N. Vera for retaliation and deliberate indifference;

3. All other claims and named defendant are dismissed from this action without prejudice to plaintiff's filing of a separate action asserting those claims; and

4. This action is referred back to the assigned magistrate judge for further proceedings consistent with this order.
IT IS SO ORDERED.

Dated: March 6 , 2020

/s/_________

UNITED STATES DISTRICT JUDGE


Summaries of

Howell v. Ceballos

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Mar 6, 2020
No. 1:19-cv-01353-DAD-SAB (PC) (E.D. Cal. Mar. 6, 2020)
Case details for

Howell v. Ceballos

Case Details

Full title:KAREEM J. HOWELL, Plaintiff, v. I. CEBALLOS, et al., Defendants.

Court:UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 6, 2020

Citations

No. 1:19-cv-01353-DAD-SAB (PC) (E.D. Cal. Mar. 6, 2020)