Opinion
1:19-cv-00156-NONE-GSA-PC
05-20-2020
TRACYE BENARD WASHINGTON, Plaintiff, v. DAVID HICKS, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED ONLY AGAINST DEFENDANTS HICKS AND ROCHA FOR USE OF EXCESSIVE FORCE IN VIOLATION OF THE EIGHTH AMENDMENT, AND THAT ALL OTHER DEFENDANTS AND CLAIMS BE DISMISSED FOR PLAINTIFF'S FAILURE TO STATE A CLAIM OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS
Tracye Benard Washington ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on February 5, 2019. (ECF No. 1.) The Complaint names as defendants Sergeant David Hicks and Correctional Officer Hipolito Rocha and brings claims for excessive force, failure to protect, violation of equal protection, violations of the Americans with Disabilities Act and the Rehabilitation Act, and violation of the Coleman v. Brown consent decree.
On March 7, 2019, Plaintiff paid the $400.00 filing fee in full for this case. (Court Record.)
Coleman v. Brown, et al., 912 F.Supp 1282 (E.D. Cal., 1995). --------
On May 19, 2020, Plaintiff notified the court that he is willing to proceed only with the excessive force claims against defendants Hicks and Rocha found cognizable by the court. (ECF No. 17.)
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only on Plaintiff's claims against defendants Sergeant David Hicks and Correctional Officer Hipolito Rocha for use of excessive force in violation of the Eighth Amendment;
2. All remaining claims and defendants be dismissed from this action;
3. Plaintiff's claims for failure to protect, violation of equal protection, violations of the ADA and RA, and violation of the Coleman v. Brown consent decree be dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted; and
4. This case be referred back to the Magistrate Judge for further proceedings, including initiation of service of process.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after the date of service of 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.
Dated: May 20 , 2020
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE