(PC) Dauwalder v. Atherton

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DANIEL DAUWALDER, Case No.: 1:24-cv-00523-JLT-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 13 v. 14-DAY OBJECTION PERIOD J. ATHERTON, et al., 15 Defendants.

17 Plaintiff Daniel Dauwalder is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. section 1983.

19 I. INTRODUCTION 20 Following screening of Plaintiff’s complaint, the Court found Plaintiff stated plausible Eighth Amendment excessive force claims against Defendants Atherton and Perez, and deliberate indifference to serious medical needs claims against Defendants Davydov and Garmendia; however, Plaintiff failed to allege any other cognizable claim. (Doc. 7 at 3-12.) Plaintiff was directed to do one of the following: (1) to notify the Court in writing that he did not wish to file a first amended complaint and was willing to proceed only on the Eighth Amendment excessive force claims against Defendants Atherton and Perez and deliberate indifference to serious medical needs claims against Defendants Davydov and Garmendia; the remaining claims against any identified by the Court; or (3) to file a notice of voluntary dismissal. (Id. at 13-14.)

2 On October 21, 2024, Plaintiff filed a notice indicating he was “electing to proceed forward w/cognizable claims …” as identified in the Court’s First Screening Order. (See Doc. 9.)

4 II. DISCUSSION 5 For the reasons set forth in the Court’s First Screening Order (Doc. 7) issued September 19, 2024, the Court will recommend this action proceed only on Plaintiff’s Eighth Amendment excessive force claims against Defendants Atherton and Perez and deliberate indifference to serious medical needs claims against Defendants Davydov and Garmendia, and that the remaining claims be dismissed.

10 III. CONCLUSION AND RECOMMENDATIONS 11 Accordingly, the Court RECOMMENDS that: 12 1. This action PROCEED only on Plaintiff’s Eighth Amendment excessive force claims 13 against Defendants Atherton and Perez and deliberate indifference to serious medical 14 needs claims against Defendants Davydov and Garmendia; and 15 2. Any remaining claims in Plaintiff’s complaint against any defendant be DISMISSED.

16 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 after being served with a copy of these Findings and Recommendations, a party may file written objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages without leave of Court and good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time // may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

IT IS SO ORDERED.

5 Dated: October 23, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE