(PC) Lewis v. Velasquez-Miranda

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DARONTA TYRONE LEWIS, ) Case No.: 1:21-cv-00188-SAB (PC) )

Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION

M. VELASQUEZ-MIRANDA, et al., ) ) FINDINGS AND RECOMMENDATIONS

Defendants. ) RECOMMENDING DISMISSAL OF CERTAIN ) CLAIMS ) ) (ECF Nos. 8, 9) )

Plaintiff Daronta Tyrone Lewis is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff filed the instant action on February 16, 2021.

On April 12, 2021, the Court screened Plaintiff’s complaint, found that Plaintiff stated a cognizable retaliation claim against Defendants J. Velasquez-Miranda and N. Holets, a cognizable excessive force claim against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton, and cognizable state law claims for battery and assault against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton, and granted Plaintiff the opportunity to file an amended complaint or notify the Court of his intent to proceed only on the claims found to be cognizable. (ECF No. 8.) On April 28, 2021, Plaintiff notified the Court that he wishes to proceed only on the claims found to be cognizable and to dismiss all other claims. (ECF No. 9.) Therefore, the Court will recommend that this action proceed on the retaliation claim against Defendants J. Velasquez-Mirand< and N. Holets, the excessive force claim against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton, and the state law claims for battery and assault against Defendants J. Velasquez-Mirand: N. Holets, Lara, and Shelton. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).

Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District Judge to this action.

Further, it is HEREBY RECOMMENDED that:

1. This action proceed against Defendants J. Velasquez-Miranda and N. Holets for retaliation, against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton for excessive force, and against Defendants J. Velasquez-Miranda, N. Holets, Lara, and Shelton for assault and battery; and

2. All other claims be dismissed from the action for failure to state a cognizable claim fo: relief.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days after being served with 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

A (re |! Dated: _ April 29, 2021 OF

UNITED STATES MAGISTRATE JUDGE