ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL WITHOUT PREJUDICE OF CLAIM AGAINST DEFENDANT DE LA CRUZ (ECF No. 23)
LAWRENCE J. O'NEILL, District Judge.
Plaintiff Andre Wells ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2011. On September 14, 2011, the action was transferred to the Fresno Division of the Eastern District of California. On December 7, 2012, the Court issued an order requiring Plaintiff to either file an amended complaint or notify the Court in writing which defendant he wished to proceed against. (ECF No. 5.) On December 26, 2012, Plaintiff filed a first amended complaint. (ECF No. 17.)
On April 4, 2013, the Court screened Plaintiff's first amended complaint pursuant to 28 U.S.C. § 1915A, and found that it stated a cognizable claim against Defendant T. Cagle for excessive force in violation of the Eighth Amendment; a cognizable claim against Defendant John Doe for failure to intervene in violation of the Eighth Amendment; and a cognizable claim against Defendant De La Cruz for retaliation in violation of the First Amendment. However, the Court also determined that Plaintiff could not proceed with his claim against Defendants Cagle and John Doe and his claim against Defendant De La Cruz in the same action pursuant to Federal Rule of Civil Procedure 18. The Court therefore provided Plaintiff with an opportunity to file an amended complaint or notify the Court whether he was agreeable to proceed only against Defendants Cagle and Doe or only against Defendant De La Cruz in this action. (ECF No. 19.)
On April 24, 2013, Plaintiff notified the Court that if he cannot proceed against all three defendants in this action, then he would like to proceed against Defendants T. Cagle and John Doe. (ECF No. 21.)
On May 13, 2013, the Magistrate Judge issued findings and recommendations that (1) this action proceed on Plaintiff's first amended complaint, filed on December 26, 2012, against Defendant T. Cagle for use of excessive force in violation of the Eighth Amendment; and against Defendant John Doe for failure to intervene in violation of the Eighth Amendment; and (2) Defendant De La Cruz be dismissed without prejudice for failure to comply with Federal Rules of Civil Procedure 18 and 20. The Findings and Recommendations were served on Plaintiff and contained notice that any objections to the findings and recommendations were to be filed within thirty days. (ECF No. 23.) On June 3, 2013, Plaintiff filed objections to the findings and recommendations. (ECF No. 27.)
In his objections, Plaintiff contends that the Court should allow his to proceed against Defendants Cagle, John Doe and De La Cruz in a single action because the claims against them arose out of the same conduct, transaction and occurrence. (ECF No. 27, p. 4.) However, Plaintiff's retaliation claim against Defendant De La Cruz is based on Plaintiff's filing of an inmate appeal against T. Cagle. This is not the same transaction or occurrence involved in the alleged use of excessive force by Defendant Cagle or the alleged failure of Defendant Doe to protect Plaintiff from the claimed excessive force. Further, the retaliation claim against Defendant De La Cruz does not involve a common question of law or fact with the claim of excessive force against Defendants Cagle and the claim of failure to protect against Defendant Doe.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, including Plaintiff's objections, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations, issued on May 13, 2013, are adopted in full;
2. This action shall proceed on Plaintiff's first amended complaint, filed on December 26, 2012, against Defendant T. Cagle for use of excessive force in violation of the Eighth Amendment; and against Defendant John Doe for failure to intervene in violation the Eighth Amendment; and
3. Defendant De La Cruz is DISMISSED from this action without prejudice based on Plaintiff's failure to comply with Federal ...