Opinion
1:19-cv-00901-NE-JLT (PC)
12-01-2021
RICHARD SCOTT KINDRED, Plaintiff, v. WUILMER CABRERA, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
(DOC. NO. 14)
CASE TO REMAIN OPEN
Plaintiff Richard Scott Kindred is a state prisoner proceeding pro se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 2, 2020, the assigned magistrate judge issued a screening order, finding that plaintiff's complaint (Doc. No. 1) states cognizable claims for the excessive use of force against defendants Cabrera and Media and for failure to protect against John Doe. (Doc. No. 7.) That order also advised plaintiff that he would be required to identify the John Doe defendant named in his complaint in order for the Marshal to effect service. (Id.)
In response to the screening order, plaintiff filed a first amended complaint. (Doc. No. 13.) Upon review and a finding that plaintiff's first amended complaint was substantially similar to the original complaint, the magistrate judge construed the filing as a notice of plaintiff's intent to stand on his original complaint. (Id.) Because plaintiff did not identify the named “John Doe' defendant sufficiently to effect service of process, the magistrate judge recommended that the court allow this action to proceed on plaintiffs Fourteenth Amendment excessive force claims against defendants Cabrera and Media and to dismiss the claims brought against the John Doe defendant. (Id.) The findings and recommendations also advised plaintiff that he could file objections thereto within fourteen days of their service. (Id.) More than fourteen days have passed, and plaintiff has not filed objections.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and proper analysis.
Accordingly, 1. The findings and recommendations issued on May 20, 2021 (Doc. No. 15) are adopted in full;
2. Defendant John Doe is dismissed from this action;
3. This case shall proceed on plaintiff s Fourteenth Amendment excessive force claims against defendants Cabrera and Media; and
4. This case is referred back to the assigned magistrate judge for further proceedings.
On November 8, 2021, likely in response to the “Order of Clarification” issued October 28, 2021 (Doc. No. 22), plaintiff filed a document in which he requests that the magistrate judge be authorized to take steps to “move this matter along.” (Doc. No. 23.) In prisoner civil rights cases such as this one, the magistrate is already empowered under this court's Local Rule 302(c)(17) to do so. Accordingly, an order by the undersigned is unnecessary. Plaintiffs November 8, 2021 request is therefore denied as moot.
IT IS SO ORDERED.