Opinion
1:21-cv-00600-NONE-BAM (PC)
08-27-2021
RODERICK WILLIAM LEAR, Plaintiff, v. NAVARRO, et al., Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED ON COGNIZABLE CLAIMS AND REQUEST THAT NON-DEFENDANTS BE DISMISSED WITHOUT PREJUDICE (DOC. NO. 13)
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS (Doc. No. 12)
Plaintiff Roderick William Lear is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On July 13, 2021, the assigned magistrate judge screened plaintiff's complaint and found that plaintiff stated cognizable claims against defendants Navarro, Neve, Allison, and John Doe 1 for excessive force for the incident on January 4, 2020, in violation of the Eighth Amendment, but failed to state any other cognizable claims or properly joined claims against any other defendants. (Doc. No. 9.) The magistrate judge ordered plaintiff to either file a first amended complaint or notify the court of his willingness to proceed only on the cognizable claims. (Id.) On July 22, 2021, plaintiff notified the court of his willingness to proceed on the cognizable claims identified by the court. (Doc. No. 10.)
Accordingly, on August 2, 2021, the magistrate judge issued findings and recommendations recommending that this action proceed on plaintiff's complaint against defendants Navarro, Neve, Allison, and John Doe 1 for excessive force in violation of the Eighth Amendment, arising from the incident on January 4, 2020. (Doc. No. 12.) The magistrate judge further recommended that all other claims and defendants be dismissed from this action based on plaintiff's failure to state claims upon which relief may be granted or failure to properly join claims pursuant to Federal Rule of Civil Procedure 18. (Id.) The findings and recommendations were served on plaintiff and contained notice that any objections were to be filed within fourteen (14) days after service. (Id. at 14.)
On August 12, 2021, plaintiff filed a motion to proceed on cognizable claims and a request that non-defendants be dismissed without prejudice. (Doc. No. 13.) Plaintiff reiterates that he is willing to proceed only on the cognizable claims identified by the court, but requests that the non-defendants be dismissed without prejudice. The request is granted.
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 entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, 1. Plaintiff's motion to proceed on cognizable claims and request that non-defendants be dismissed without prejudice, (Doc. No. 13), is granted;
2. The findings and recommendations issued on August 2, 2021, (Doc. No. 12), are adopted in full;
3. This action shall proceed on plaintiff's complaint, filed April 9, 2021, (Doc. No. 1), against defendants Navarro, Neve, Allison, and John Doe 1 for excessive force in violation of the Eighth Amendment, arising from the incident on January 4, 2020;
4. All other claims and defendants are dismissed from this action, without prejudice, for failure to state a claim upon which relief may be granted or failure to properly join claims pursuant to Federal Rule of Civil Procedure 18; and 5. This action is referred back to the magistrate judge for proceedings consistent with this order.
IT IS SO ORDERED.