(PC) Mackey v. Garcia

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

KENNETH MACKEY, Case No. 1:23-cv-00337-EPG (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS, v. CLAIMS AND DEFENDANTS BE E. GARCIA, et al., (ECF Nos. 1 & 8) Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS ORDER DIRECTING CLERK TO ASSIGN Kenneth Mackey (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the complaint commencing this action on March 7, 2023. (ECF No. 1). The Court screened Plaintiff’s complaint. (ECF No. 8). The Court found that only the following claims should proceed past the screening stage: Plaintiff’s claim for excessive force in violation of the Eighth Amendment against Defendant Garcia and Plaintiff’s claim for retaliation in violation of the First Amendment against Defendant Quintero. (Id.). The Court gave Plaintiff thirty days to either: “a. File a First Amended Complaint; b. Notify the Court in writing that he does not want to file an amended complaint and instead wants to proceed only on Plaintiff’s claim for excessive force in violation of the Eighth Amendment against Defendant Garcia, and Plaintiff’s claim for retaliation in violation of the First Amendment against Defendant Quintero; or c. Notify the Court in writing that he wants to on his complaint.” (Id. at 11-12). On July 25, 2023, Plaintiff filed a notice that he wants proceed only on the claims that the Court found should proceed past screening. (ECF No. 9). Accordingly, for the reasons set forth in the Court’s screening order that was entered on June 26, 2023 (ECF No. 8), and because Plaintiff has notified the Court that he wants to proceed only on the claims that the Court found should proceed past screening (ECF No. 9), it HEREBY RECOMMENDED that all claims and defendants be dismissed, except for Plaintiffs claim for excessive force in violation of the Eighth Amendment against Defendant Garcia and Plaintiffs claim for retaliation in violation of the First Amendment against Defendant Quintero. 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 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 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 } (9th Cir. 1991)). Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district judge to this case. IT IS SO ORDERED. ! Dated: _ July 26, 2023 [see heey — UNITED STATES MAGISTRATE JUDGE