(PC) Kindred v. Cabrera

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

RICHARD SCOTT KINDRED, 1:19-cv-00901-NONE-JLT (PC)

Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS JOHN DOE DEFENDANT; v. ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR A WUILMER CABRERA, et al., SCREENING ORDER ON FIRST AMENDED COMPLAINT Defendants. (Doc. 14) 14-DAY DEADLINE This Court previously screened Plaintiff’s complaint and found that it states cognizable excessive force claims against Defendants Cabrera and Media and a failure to protect claim against John Doe. (Doc. 7.). The Court ordered Plaintiff to file a first amended complaint curing the deficiencies identified by the Court in its screening order, a notice of voluntary dismissal, or a notice of election to stand on the complaint. Id. The Court advised Plaintiff that John Doe must be named or otherwise identified for the United States Marshal to effect service. Id. Plaintiff filed a first amended complaint. (Doc. 13.) Upon review, the Court finds that the amended complaint is substantially similar to the original complaint, with minor factual additions, asserting the same claims against the same defendants. Therefore, the Court construes this filin g as a notice of Plaintiff’s intent to stand on his original complaint. and Media for their alleged attack on Plaintiff. However, because Plaintiff has not identified “John Doe” sufficiently to effect service of process, the claim against this defendant should be dismissed. Accordingly, it is RECOMMENDED that the Court allow this action to proceed on the Fourteenth Amendment excessive force claims against Defendants Cabrera and Media and to DISMISS the claims against John Doe. 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)(l). Within 14 days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file objections within the specified time may result in the waiver of rights 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 ORDERED that Plaintiff’s motion for a screening order on the first amended complaint is DENIED as moot. (Doc. 14.)

Dated: May 20, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE