(PC) Thomas v. Reyna

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA

11 ROBERT QUINCY THOMAS, 1:19-cv-01217-DAD-GSA-PC 12 FINDINGS AND RECOMMENDATIONS, Plaintiff, RECOMMENDING THAT THIS ACTION 13 PROCEED AGAINST DEFENDANTS vs. HUERTA, REYNA, PODSAKOFF, 14 VELLIDO, AND CENTERO FOR USE OF REYNA, et al., EXCESSIVE FORCE, AND THAT ALL 15 OTHER CLAIMS BE DISMISSED Defendants.

16 OBJECTIONS, IF ANY, DUE IN 14 DAYS

19 Plaintiff, Robert Quincy Thomas, is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on September 4, 2019. (ECF No. 1.) The Complaint names as defendants Correctional Officer (C/O) L. Reyna, C/O M. Podsakoff, C/O P. Vellido, C/O J.

23 Centeno, and Sergeant (Sgt.) N. Huerta ( (collectively, “Defendants”), and brings excessive force and state law claims.

25 The court screened the Complaint and found that it states cognizable claims against defendants Reyna, Podsakoff, Vellido, Centeno, and Huerta for use of excessive force in violation of the Eighth Amendment, but no other cognizable claims. (ECF No. 13.) On September 11, 2020, the court issued a screening order requiring Plaintiff to either (1) file an amended complaint, or (2) notify the court that he is willing to proceed only with the claims found cognizable by the court. (Id.) 3 On September 21, 2020, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 45.)

5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. This action proceed against defendants Reyna, Podsakoff, Vellido, Centeno, and 7 Huerta for use of excessive force in violation of the Eighth Amendment; 8 2. All remaining claims be dismissed from this action; 9 3. Plaintiff’s state law claims be dismissed from this action based on Plaintiff's 10 failure to state a claim upon which relief may be granted under § 1983; and 11 4. This case be referred back to the Magistrate Judge for further proceedings, 12 including initiation of service of process.

13 These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 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.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order.

19 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

22 Dated: September 23, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE