FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF FAILURE TO PROTECT CLAIM

[ECF Nos. 3, 7]

STANLEY A. BOONE, Magistrate Judge.

Plaintiff Patrick M. McMillain is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On April 5, 2019, Defendants removed this action from the Kern County Superior Court.

On April 15, the undersigned screened Plaintiff's complaint and found that Plaintiff stated a cognizable excessive force claim against Defendants Delgado, Romero, Brown, Jones, Negrete, Dunnahoe and Riley. (ECF No. 3.) However, Plaintiff did not state a cognizable failure to protect claim. The Court granted Plaintiff the opportunity to file a first amended complaint or notify the Court of his intent to proceed only on the excessive force claim.

On May 3, 2019, Plaintiff notified the Court of his intent to proceed only on the excessive force claim against Defendants Delgado, Romero, Brown, Jones, Negrete, Dunnahoe and Riley. (ECF No. 7.) As a result, the Court will recommend that this action only proceed on the excessive force claim ADA claim against Defendant Pfeiffer, and the failure to protect claim be dismissed for the reasons stated in the Court's April 15, 2019, screening order. 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, it is HEREBY RECOMMENDED that:

1. This action shall proceed on Plaintiff's excessive force claim against Defendants Delgado, Romero, Brown, Jones, Negrete, Dunnahoe and Riley; and

2. Plaintiff's failure to protect claim be dismissed for failure to state a cognizable claim for relief.

This Findings and Recommendation will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with this Findings and Recommendation, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." 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.