(PC) Mackey v. Goss

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA TOMMY MACKEY, No. 1:18-cv-00988-DAD-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. THAT PLAINTIFF BE PERMITTED TO PROCEED ON COGNIZABLE CLAIM AND D. GOSS, et al., THAT NON-COGNIZABLE CLAIMS BE DISMISSED WITHOUT PREJUDICE 15 Defendants.

OBJECTIONS, IF ANY, DUE IN 14 DAYS 17 Plaintiff Tommy Mackey is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. On July 3, 2019, the court screened plaintiff’s complaint and found that plaintiff stated excessive force claims against defendants R. Rodriguez, D.

20 Rodriguez, Pompa, Garcia, Schulte, and Martinez. See ECF No. 15. The court gave plaintiff three options: (1) proceed only on the claims found cognizable, (2) amend the complaint to add additional facts to make out additional claims, or (3) stand on the current complaint subject to dismissal of claims and defendants. On July 26, 2019, plaintiff filed a notice indicating his desire to proceed only on the claims identified as cognizable. ECF No. 16. Therefore, we recommend that his remaining claims be dismissed without prejudice.

26 RECOMMENDATION 27 Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams | v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a | magistrate judge’s jurisdiction in this case, so any dismissal of a claim requires an order from a | district judge. /d. Thus, the undersigned submits the following findings and recommendations | under 28 U.S.C. § 636(b)(1): 5 1. Plaintiff states cognizable excessive force claims against defendants R. Rodriguez, D.

6 Rodriguez, Pompa, Garcia, Schulte, and Martinez.

7 2. Plaintiff's remaining claims should be dismissed without prejudice.

8 Within fourteen (14) days of service of these findings and recommendations, plaintiff may | file written objections with the court. If plaintiff files such objections, he should do so in a | document captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

11 | Plaintiff is advised that failure to file objections within the specified time may result in the waiver | of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

1s IT IS SO ORDERED.

16 ( Caan Dated: _ August 2, 2019 17 UNI STATES MAGISTRATE JUDGE 20 No. 205.