Opinion
NO. 1:05-cv-01485 LJO YNP GSA (PC).
March 15, 2010
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on the November 21, 2006, second amended complaint. On February 2, 2010, the court issued an order finding that Plaintiff's second amended complaint states a cognizable claims against Defendant Rumbles for excessive force in violation of the Eighth Amendment, but does not state any other cognizable claims and does not state any claims against the remaining defendants. The Court ordered Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. On March 8, 2010, Plaintiff notified the Court that he does not wish to amend and is willing to proceed on the claims found cognizable. Based on Plaintiff's notice, this Findings and Recommendations now issues. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a claim).
Accordingly, it is HEREBY RECOMMENDED that:
1. This action proceed on Plaintiff's November 21, 2006, second amended complaint, against Defendant Rumbles for violation of the Eighth Amendment;
2. Plaintiff's First Amendment, Fourth Amendment, Fourteenth Amendment Due Process, Fourteenth Amendment Equal Protection and disciplinary hearing claims be dismissed for failure to state a claim; and
3. Defendants R. Shannon, T. Hudgins, E. Park M.C. Voss, James Yates, J.M. Mattingly, J.L. Scott, L. Fugate, D. Huckaby, R. Lantz, J. Collier, C.O. Redding, S. DeShazo, E. Zamora, A. Romero, J.A. Perez, I. Villa, and L. Wiest be dismissed based on Plaintiff's failure to state any claims against them.
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 thirty (30) 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.