(PC) Mackey v. Garcia

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH MACKEY, Case No.: 1:23-cv-0337 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND 13 v. RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS 14 E. GARCIA, et al., GALINDO AND NORTHCUTT

15 Defendants. (Doc. 13)

16 17 Kenneth Mackey is a prisoner proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. The magistrate judge screened the allegations of the 19 complaint pursuant 28 U.S.C. § 1915A(a), and found Plaintiff stated cognizable claims against 20 Defendant Garcia for excessive force in violation of the Eighth Amendment and against 21 Defendant Quintero for retaliation in violation of the First Amendment. However, the magistrate 22 judge also found the remaining claims in the complaint—including all claims against defendants 23 Galindo and Northcutt—were not cognizable. (Doc. 8.) In response to the Screening Order, 24 Plaintiff filed notice that he did not wish to file an amended complaint, and was willing to 25 proceed only on the claims found cognizable. (Doc. 9.) 26 The magistrate judge recommended the action proceed on the identified cognizable claims 27 against Garcia and Quintero, and all other claims and defendants be dismissed from the action. (Doc. 13.) The magistrate judge also recommended the remaining claims be dismissed. (Id. at 2.) 1 | The Court served the Findings and Recommendations on Plaintiff on the same date, and it 2 | notified him that any objections were due within 14 days of the date of service. Ud.) Plaintiff 3 | was also advised that the “failure to file objections within the specified time may result in waiver 4 | of rights on appeal.” (/d., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter 5 | v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) No objections have been filed, and the time to 6 | do so has expired. 7 Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducted a de novo review of this case. 8 | Having carefully reviewed the matter, the Court concludes the Findings and Recommendations to 9 | be supported by the record and proper analysis. Accordingly, the Court ORDERS: 10 1. The Findings and Recommendations issued on July 26, 2023 (Doc. 13), are 11 ADOPTED in full. 12 2. This case SHALL proceed only on Plaintiffs claims for: (i) excessive force in 13 violation of the Eighth Amendment against Defendant Garcia and (ii) retaliation in 14 violation of the First Amendment against Defendant Quintero. All other claims are 15 dismissed. 16 3. Defendants A. Galindo and L Northcutt are DISMISSED from the action. 17 4. The matter is referred to the magistrate judge for further proceedings. 18 19 IT IS SO ORDERED. 29 | Dated: _ August 24, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28