(PC) Brown v. Marroquin

Opinion

BOBBY E. BROWN, 1:21-cv-00087-GSA-PC

Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT vs. JUDGE TO THIS CASE

MARROQUIN, et al., AND

Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE PROCEED ONLY WITH PLAINTIFF’S EXCESSIVE FORCE CLAIMS AGAINST DEFENDANTS C/O MARROQUIN, C/O CAMPBELL, C/O CHAVEZ, AND C/O POMPA; AND ADA CLAIMS AGAINST DEFENDANTS C/O MARROQUIN AND SERGEANT ESPINOSA; THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED; AND THAT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF BE DENIED AS MOOT OBJECTIONS, IF ANY, DUE WITHIN

Bobby E. Brown (“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 January 21, 2021. (ECF No. 1.) The Complaint names as defendants Correctional Officer (C/O) Otto Marroquin, C/O Dorius Campbell, C/O D. Chavez, C/O M. Pompa, Sergeant M. Espinosa, John Doe (Medical Personnel, Psy Tech), and Christian Pfeiffer (Warden, KVSP) (collectively, “Defendants”), and brings claims for use of excessive force, failure to intervene, violation of the ADA, minimizing Plaintiff’s injuries as minor, and false reports. Plaintiff also brings a motion for preliminary injunctive relief in the Complaint. The court screened the Complaint and found that it states cognizable claims for use of excessive force against Defendants C/O Marroquin, C/O Campbell, C/O Chavez, and C/O Pompa; and for violation of the ADA against Defendants C/O Marroquin and Sergeant Espinosa. (ECF No. 9.) The court also found that Plaintiff’s motion for preliminary injunctive relief should be denied as moot. (Id.) On November 28, 2022, the court issued a screening order requiring Plaintiff to either (1) file a First Amended Complaint, or (2) notify the court that he is willing to proceed only with the claims found cognizable by the court. (Id.) On December 14, 2022, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 10.) Accordingly, IT IS HEREBY ORDERED that the Clerk randomly assign a United States District Judge to this case. AND Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed only on Plaintiff’s cognizable claims for use of excessive force against Defendants C/O Marroquin, C/O Campbell, C/O Chavez, and C/O Pompa; and for violation of the ADA against Defendants C/O Marroquin and Sergeant Espinosa; 2. All remaining claims and defendants be dismissed from this action; 3. Plaintiff’s claims for failure to intervene, for false reports, and for minimizing Plaintiff’s injuries be dismissed from this action based on Plaintiff’s failure to state any claims upon which relief may be granted; 4. Defendants John Doe (Medical Personnel, Psy Tech) and Christian Pfeiffer (Warden, KVSP) be dismissed from this action based on Plaintiff’s failure to state any claims against them upon which relief may be granted; 5. Plaintiff’s motion for preliminary injunctive relief be denied as moot; and 6. 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)(l). 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: December 15, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE