Cisneros v. Moreno et al
Filing
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SCREENING ORDER; FINDINGS and RECOMMENDATIONS that Plaintiff be Permitted to Proceed on Cognizable Claim and that Non-Cognizable Claims be Dismissed With Leave to Amend; ORDER Directing Clerk of Court to Assign Case to District Judge - CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jeremy D. Peterson. New Case No. 1:18-cv-00628 LJO JDP (PC) 1 , signed by Magistrate Judge Jeremy D. Peterson on 3/20/2019: 14-Day Objection Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT CISNEROS,
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Plaintiff,
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF BE PERMITTED TO
PROCEED ON COGNIZABLE CLAIM AND
THAT NON-COGNIZABLE CLAIMS BE
DISMISSED WITH LEAVE TO AMEND
v.
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SCREENING ORDER
Defendants.
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MORENO, et al.,
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Case No. 1:18-cv-00628-JDP
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OBJECTIONS, IF ANY, DUE IN 14 DAYS
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ORDER DIRECTING CLERK OF COURT TO
ASSIGN CASE TO DISTRICT JUDGE
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ECF No. 1
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Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought
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under 42 U.S.C. § 1983. Plaintiff’s complaint, filed May 8, 2018, ECF No. 1, is before the court
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for screening under 28 U.S.C. § 1915A. The court finds that plaintiff has stated a failure-to-
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protect claim against defendant Moreno for violation of plaintiff’s Eighth Amendment rights.
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The court will recommend that plaintiff’s remaining claims be dismissed without prejudice and
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that he be granted leave to amend the complaint.
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I.
SCREENING AND PLEADING REQUIREMENTS
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A district court is required to screen a prisoner’s complaint seeking relief against a
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governmental entity, its officer, or its employee. See 28 U.S.C. § 1915A(a). The court must
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identify any cognizable claims and dismiss any portion of a complaint that is frivolous or
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malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a
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defendant who is immune from such relief. See 28 U.S.C. §§ 1915A(b)(1), (2).
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A complaint must contain a short and plain statement that plaintiff is entitled to relief,
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Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its
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face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not
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require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009). If the allegations “do not permit the court to infer more than the mere
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possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not
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identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024,
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1038 (9th Cir. 2016) (quoting Skinner v. Switzer, 562 U.S. 521, 530 (2011)). Instead, what
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plaintiff must state is a “claim”—a set of “allegations that give rise to an enforceable right to
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relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en banc)
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(citations omitted).
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The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404
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U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint only “if it
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appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which
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would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017)
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(quoting Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014)).
THE COMPLAINT1
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II.
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Plaintiff is a state prisoner incarcerated at the California Substance Abuse Treatment
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Facility, Corcoran (“SATF”). Id. at 1. Plaintiff names three defendants who are correctional
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officers at SATF: Moreno, Lopez, and Doony. Id. at 2. Plaintiff’s fourth named defendant is
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The court draws the facts in this section from plaintiff’s complaint, ECF No. 1, and accepts
them as true for screening purposes.
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California Department of Corrections and Rehabilitation (“CDCR”). Id.
Plaintiff alleges:
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On several occasions during the month of March 2018, I
notified C/O Moreno that I was being threatened by an inmate by
the name of MacCall. I told officer Moreno that the individual was
threatening to do physical harm to me, and that I would like to be
moved, or that Mr. MacCall should be moved. I kept being told
that the situation would be handled and that I don’t have to worry
about anything. However, on April 7th, 2018, I was jumped by
MacCall and was seriously injured. I received stitches in [my]
head, and bruises all over my body. After receiving medical
attention to my injuries, I was then moved out of A-Yard, where the
beating [occurred], to B-Yard. I was informed that inmate MacCall
was taken to [administrative segregation] for the assault. The
injuries I had received required me to be ambulatory removed from
the scene to be treated. I had reported the abuse I was receiving
from MacCall to several other officers, but to no resolution from
any of them. Had the staff responded to my complaints and
notification of the abuse and threats I was receiving from MacCall,
I would not have the stitches in my head, nor the consistent
headaches I am having.
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Id. at 3.
Plaintiff claims: “Civil Rights violation of equal protection. Discrimination, Abuse under
color of Authority.” Id. Plaintiff seeks monetary relief. Id. at 6.
III.
DISCUSSION
A. Requirements under 42 U.S.C. § 1983
Section 1983 allows a private citizen to sue for the deprivation of a right secured by
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federal law. See 42 U.S.C. § 1983; Manuel v. City of Joliet, Ill., 137 S. Ct. 911, 916 (2017). To
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state a claim under § 1983, a plaintiff must allege that a defendant, while acting under color of
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state law, personally participated in the deprivation of a right secured by federal law. See Soo
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Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 2017). A defendant personally participates in a
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deprivation “if he does an affirmative act, participates in another’s affirmative acts or omits to
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perform an act which he is legally required to do that causes the deprivation of which complaint is
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made.” Atayde v. Napa State Hosp., 255 F. Supp. 3d 978, 988 (E.D. Cal. 2017) (quoting Lacey v.
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Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012)). Vague and conclusory allegations of
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personal involvement in an alleged deprivation do not suffice. Id.
“The Eleventh Amendment prohibits federal courts from hearing suits brought against an
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unconsenting state.” Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th
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Cir. 1991) (internal citations omitted). This prohibition extends to state agencies and suits
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seeking monetary damages for past injury. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
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Inc., 506 U.S. 139, 144 (1993); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
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(1984). Considering the foregoing, defendant CDCR is immune from suit under the Eleventh
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Amendment, and we will recommend that the claim against CDCR be dismissed.
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On the other hand, the three remaining defendants—state prison employees who can be
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inferred to have acted under color of state law—are proper defendants. See Paeste v. Gov’t of
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Guam, 798 F.3d 1228, 1238 (9th Cir. 2015) (“[G]enerally, a public employee acts under color of
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state law while acting in his official capacity or while exercising his responsibilities pursuant to
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state law.” (quoting West v. Atkins, 487 U.S. 42, 50 (1988))). We next consider whether plaintiff
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has alleged that each of these three defendants—Moreno, Lopez, and Doony—personally
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participated in the alleged constitutional deprivations as required by § 1983. See Preschooler II,
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479 F.3d at 1183.
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Plaintiff plausibly alleges that defendant Moreno personally participated in the alleged
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deprivations. Plaintiff contends that he told Moreno about the threats he was facing from
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MacCall, and Moreno failed to protect plaintiff.
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Plaintiff does not plausibly allege that defendants Lopez or Doony personally participated
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in the alleged deprivations. Indeed, plaintiff makes no allegations against them at all. If these
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defendants were involved in the situation plaintiff describes above, plaintiff must say so
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explicitly. Plaintiff will be given leave to amend his complaint to cure this deficiency.
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The remaining question is whether the defendant Moreno’s alleged actions violated
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federal law. Plaintiff seeks to bring the following claims: “Civil Rights violation of equal
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protection. Discrimination, Abuse under color of Authority.” ECF No. 1 at 3. Plaintiff’s
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allegations, as currently stated, do not state the claims he seeks to bring. However, the facts do
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implicate a failure-to-protect claim under the Eighth Amendment, which we will consider below.
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B. Failure to Protect in Violation of the Eighth Amendment
“Prison officials have a duty to take reasonable steps to protect inmates from physical
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abuse.” Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982), abrogated on other grounds by
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Sandin v. Conner, 515 U.S. 472 (1995); see also Farmer v. Brennan, 511 U.S. 825, 833 (1994).
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To establish a violation of this duty, the prisoner must prove that prison officials were
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“deliberately indifferen[t]” to serious threats to his or her safety. See Farmer, 511 U.S. at 834.
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To demonstrate that a prison official was deliberately indifferent to a serious threat to an inmate’s
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safety, the prisoner must show that “the official [knew] of and disregard[ed] an excessive risk to
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inmate . . . safety; the official must both be aware of facts from which the inference could be
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drawn that a substantial risk of serious harm exists, and [the official] must also draw the
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inference.” Farmer, 511 U.S. at 837; see also Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th
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Cir. 2016) (explaining that subjective deliberate indifference standard under the Eighth
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Amendment is well established). To prove knowledge of the risk, however, the prisoner may rely
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on circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish
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knowledge. See Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).
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Here, the court finds that plaintiff has stated a cognizable Eighth Amendment failure-to-
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protect claim against defendant Moreno. According to the complaint, plaintiff warned Moreno on
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several occasions of threats he received from MacCall. Plaintiff further alleges that MacCall
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acted on those threats by seriously injuring plaintiff. These allegations are sufficient to state a
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claim against Moreno.
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IV.
CONCLUSION
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The court has screened plaintiff’s complaint and finds that plaintiff states a failure-to-
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protect claim against defendant Moreno. The court will recommend that plaintiff’s remaining
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claims be dismissed without prejudice and that plaintiff be granted leave to amend the complaint.
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Should plaintiff choose to amend the complaint, the amended complaint should be brief,
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Fed. R. Civ. P. 8(a), but must state what each named defendant did that led to the deprivation of
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plaintiff’s constitutional or other federal rights. See Iqbal, 556 U.S. at 678; Jones v. Williams,
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297 F.3d 930, 934 (9th Cir. 2002). Plaintiff must set forth “sufficient factual matter . . . to ‘state a
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claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
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at 570). There is no respondeat superior liability, and each defendant is only liable for his or her
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own misconduct. See id. at 677. Plaintiff must allege that each defendant personally participated
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in the deprivation of his rights. Jones, 297 F.3d at 934 (emphasis added). Plaintiff should note
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that a short, concise statement of the allegations in chronological order will assist the court in
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identifying his claims. Plaintiff should name each defendant and explain what happened,
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describing personal acts by the individual defendant that resulted in the violation of plaintiff’s
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rights. Plaintiff should also describe any harm he suffered from the violation of his rights.
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Plaintiff should not fundamentally alter his complaint or add unrelated issues. See Fed. R. Civ. P.
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18; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different
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defendants belong in different suits . . . .”).
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Any amended complaint will supersede the original complaint, Lacey v. Maricopa
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County, 693 F. 3d 896, 907 n.1 (9th Cir. 2012) (en banc), and it must be complete on its face
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without reference to the prior, superseded pleading, see E.D. Cal. Local Rule 220. Once an
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amended complaint is filed, the original complaint no longer serves any function in the case.
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Therefore, in an amended complaint, as in an original complaint, each claim and the involvement
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of each defendant must be sufficiently alleged. The amended complaint should be titled “First
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Amended Complaint,” refer to the appropriate case number, and be an original signed under
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penalty of perjury.
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V.
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The clerk of court is directed to assign this case to a district judge, who will preside over
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ORDER
this case. The undersigned will remain as the magistrate judge assigned to the case.
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VI.
RECOMMENDATIONS
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Under 28 U.S.C. § 636(c)(1), all parties named in a civil action must consent to a
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magistrate judge’s jurisdiction before that jurisdiction vests for “dispositive decisions.” Williams
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v. King, 875 F.3d 500, 504 (9th Cir. 2017). No defendant has appeared or consented to a
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magistrate judge’s jurisdiction, so any dismissal of a claim requires an order from a district judge.
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Id. Thus, the undersigned submits the following findings and recommendations to a United
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States District Judge under 28 U.S.C. § 636(b)(l):
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1. Plaintiff states a failure-to-protect claim against defendant Moreno.
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2. Plaintiff’s remaining claims should be dismissed without prejudice, and plaintiff
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should be granted leave to amend the complaint.
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3. If plaintiff files an amended complaint, defendant Moreno should not be required to
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respond until the court screens the amended complaint.
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Within fourteen days of service of these findings and recommendations, plaintiff may file
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written objections with the court. If plaintiff files such objections, he should do so in a document
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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is
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advised that failure to file objections within the specified time may result in the waiver of rights
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on appeal. See Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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March 20, 2019
UNITED STATES MAGISTRATE JUDGE
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No. 203.
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