(PC) Thomas v. Kern Valley State Prison

Opinion

RICHARD LEE THOMAS, Case No.: 1:21-cv-01675-SKO (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS TO v. DISMISS CERTAIN CLAIMS AND DEFENDANTS KERN VALLEY STATE PRISON, et al., 14-DAY OBJECTION PERIOD Defendants. Clerk of the Court to Assign District Judge

Plaintiff Richard Lee Thomas is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. On November 2, 2023, the Court issued its Second Screening Order. (Doc. 14.) The Court found that Plaintiff stated cognizable Eighth Amendment excessive force claims against Defendants Peralta and Sandoval, and an Eighth Amendment failure to intervene claim against Defendant Melendez, but failed to state any other cognizable claim against any other defendant. (Id. at 3-6.) Plaintiff was directed to do one of the following within 21 days: (1) notify the Court he did not wish to file a second amended complaint and instead was willing to proceed only on the Eighth Amendment excessive force claims against Defendants Peralta and Sandoval and (2) file a second amended complaint curing the deficiencies identified in the Court’s order, or (3) file a notice of voluntary dismissal. (Id. at 7-8.) On November 21, 2023, Plaintiff filed a notice indicating his wish to proceed only on the claims found cognizable by the Court. (See Doc. 15 at 5 [“I am not intending to file a second amended complaint, and am willing to proceed in my Eighth Amendment claims against Corrections Officers Peralta, Sandoval and Melendez”].) The Clerk of the Court is DIRECTED to assign a District Judge to this action. Further, for the reasons given above, the Court RECOMMENDS that: 1. This action PROCEED only on Plaintiff’s Eighth Amendment excessive force claims against Defendants Peralta and Sandoval and failure to intervene claim against Defendant Melendez, and the remaining claims and defendants to be dismissed; 2. The following individuals or entities be DISMISSED from this action: a. Kern Valley State Prison b. California Department of Corrections and Rehabilitation c. People of the State of California d. “Bertha” e. J. Larez f. J. Gurrez g. “Pita” h. Betanhurt; and 3. The following corrections be made on the docket regarding the spelling of Defendants’ names as reflected in Plaintiff’s first amended complaint: a. “Sandovn” be corrected to “Sandoval” b. “Maendrez” be corrected to “Melendez.” These Findings and Recommendations will be submitted to the 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 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.

Dated: November 27, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE