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Burnell v. Gonzalez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 26, 2010

JOE BABY BURNELL, PLAINTIFF,
v.
FERNANDO GONZALEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISMISSING CERTAIN CLAIMS

Plaintiff Joe Baby Burnell ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to jurisdiction by a U.S. Magistrate Judge. (Doc. #9.)

On August 31, 2010, the Court issued an order finding that Plaintiff's complaint stated some cognizable claims against certain Defendants. The Court noted that Plaintiff failed to state any other claims against any other Defendants. The Court ordered Plaintiff to either file an amended complaint or notify the Court that he wished to proceed only on the claims found to be cognizable.

On September 17, 2010, Plaintiff notified the Court that he does not wish to amend and is willing to proceed only on the claims found to be cognizable. Based on Plaintiff's notice, this order 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 ORDERED that:

1. This action shall proceed on Plaintiff's Eighth Amendment claims against Defendants Razo, Moreno, and Rodriguez for the excessive use of pepper spray, and Plaintiff's Eighth Amendment claims against Defendants Olmus, Moreno, Martinez, and Razo for failing to decontaminate Plaintiff from the effects of the pepper spray; and

2. Plaintiff's remaining claims are dismissed for failure to state a claim.

IT IS SO ORDERED.

20100926

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