(PC) McDowell v. Atkinson

Opinion

JONATHAN DEWITT MCDOWELL, Case No. 1:20-cv-01036-SKO (PC)

Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS DEFENDANT AND CLAIMS v.

KERN VALLEY STATE PRISON, et al., 14-DAY DEADLINE

Defendants. Clerk of the Court to Assign a District Judge

On February 11, 2021, the Court screened Plaintiff’s complaint and found that it states cognizable claims of excessive force against Defendants Atkinson, Furlong, Leora, Harman, Hernandez, and Johnson in their individual capacities, as well as a claim of failure to intercede against Defendant Johnson in his individual capacity. (Doc. 11.) The Court found that the remaining claims were not cognizable. (Id.) The Court therefore directed Plaintiff, within 21 days, to file a first amended complaint curing the deficiencies in his pleading or to notify the Court that he wishes to proceed only on the claims found cognizable. (Id. at 10.) The Court cautioned Plaintiff that failure to comply with the order would result in a recommendation “that this action proceed only on the claims found cognizable … and that all other claims and defendants be dismissed.” (Id.) Plaintiff has not filed a first amended complaint or otherwise responded to the Court’s order, and the time to do so has passed. Accordingly, the Court RECOMMENDS that (1) Defendant Kern Valley State Prison be DISMISSED, and (2) the claims in Plaintiff’s complaint be DISMISSED, except for the claims of excessive force against Defendants Atkinson, Furlong, Leora, Harman, Hernandez, and Johnson in their individual capacities, and the claim of failure to intercede against Defendant Johnson in his individual capacity, pursuant to 42 U.S.C. § 1983. The Court DIRECTS the Clerk of the Court to assign a district judge to this action. These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of 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.” Failure to file objections within the specified time may result in 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 SO ORDERED.

Sheila K. Oberto Dated: March 18, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE