IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 15, 2010
CHARLES JAMES MAULDN, PLAINTIFF,
C/O NASON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 22, 2010, the court issued an order finding that Plaintiff's second amended complaint stated cognizable claims against Defendants Nason and Vargas for excessive force in violation of the Eighth Amendment, but did not state any claims against Defendant Butts. The court ordered Plaintiff to either file a third amended complaint or notify the Court of his willingness to proceed only on the claims found to be cognizable. On March 9, 2010, Plaintiff notified the court that he does not wish to amend and is willing to proceed on the claims found cognizable. Based on Plaintiff's notice, this Finding and Recommendation now issues. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987) (prisoner must be given notice of deficiencies and opportunity to amend prior to dismissing for failure to state a claim).
Accordingly, it is HEREBY RECOMMENDED that:
1. This action proceed on Plaintiff's June 26,2009, second amended complaint, against Defendants Nason and Vargas for excessive force violation of the Eighth Amendment;
2. Defendant Butts be dismissed based on Plaintiff's failure to state any claims against him.
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 thirty (30) 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
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