(PC) Cato v. Denning

Opinion

JAMES CATO, JR., Case No. 1:19-cv-00951-LJO-SAB (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF v. CERTAIN CLAIMS M. DENNING, et al., (ECF Nos. 10, 11) Defendants. FOURTEEN (14) DAY DEADLINE Plaintiff James Cato, Jr. is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August 23, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff stated a cognizable claim against Defendants Denning and Hillman, in their individual capacity, for violation of Plaintiff’s right to receive mail under the First Amendment, but failed to state any other cognizable claims. (ECF No. 10.) The Court ordered Plaintiff to file either a first amended complaint or a written notice informing the Court that he is willing to proceed only on the cognizable claim. (Id. at 5.) On September 3, 2019, Plaintiff filed a written notice of his intent to proceed only on the cognizable claim identified by the Court. (ECF No. 11.) Accordingly, the Court will recommend that this action proceed only against Defendants Denning and Hillman, in their individual capacity, for violation of Plaintiff’s right to receive mail under the First Amendment, and that all other claims be dismissed. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). Based on the foregoing, it is HEREBY RECOMMENDED that: 1. This action proceed on Plaintiff's complaint, filed on July 11, 2019, (ECF No. 1), against Defendants Denning and Hillman, in their individual capacity, for violation of Plaintiff's right to receive mail under the First Amendment; and 2. All other claims be dismissed from the action for failure to state a cognizable claim for relief. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 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 result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. OF. nf ee Dated: _September 4, 2019 _ Of UNITED STATES MAGISTRATE JUDGE