(PC) Hill v. Duncan

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JOHNATHAN L. HILL, Case No. 1:20-cv-00250-NONE-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIMS 13 v. J. DUNCAN; S. AVILA, 14-DAY DEADLINE 15 Defendants. ORDER REGARDING RESPONSIVE PLEADING BY DEFENDANT AVILA 17 On March 9, 2020, the Court screened Plaintiff’s complaint and found that it states cognizable claims against Defendant Duncan for violations of the Eighth Amendment for excessive force and for violations of state law for assault, battery, and negligence. (Doc. 4.) The Court found that the complaint states claims against Defendant Avila for violations of the Eighth Amendment for failure to intercede and for violations of state law for negligence. (Id.) The Court found that all other claims were not cognizable. (Id.) The Court directed Plaintiff to file an amended complaint curing the deficiencies identified or to notify the Court that he wished to proceed only on the claims found cognizable. (Id. at 10.)

25 On June 4, 2020, Plaintiff filed a notice that he wishes to “proceed on the claims the court found cognizable.” (Doc. 13.) Accordingly, and for the reasons set forth in the Court’s screening order (Doc. 4), the Court RECOMMENDS that all the claims in Plaintiff’s complaint be 1 U.S.C. § 1983 and assault, battery, and negligence under state law against Duncan (Counts 1 through 4 of the complaint) and (2) Plaintiff’s claims of Eighth Amendment failure to intercede under 42 U.S.C. § 1983 and negligence under state law against Avila (Counts 8 and 9).

4 Defendant Avila SHALL file a responsive pleading to Plaintiff’s complaint by the date Defendant Duncan is directed to file same. (See Order Finding Service of Complaint Appropriate and Directing Service, filed concurrently herewith.)

7 These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and Recommendations, the parties 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.

16 Dated: June 11, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE