(PC) Stevens v. Martinez

Filing 25

FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims, signed by Magistrate Judge Sheila K. Oberto on 11/09/2023. Referred to Judge Thurston.Objections to F&R due within Fourteen-Days. (Maldonado, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LYRALISA LAVENA STEVENS, 12 Plaintiff, 13 v. 14 C. MARTINEZ, 15 Case No. 1:21-cv-01144-JLT-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 14-DAY OBJECTION PERIOD Defendant. 16 17 18 Plaintiff Lyralisa Lavena Stevens is a state prisoner proceeding pro se in this civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. BACKGROUND 20 Plaintiff filed a first amended complaint on February 9, 2023. (Doc. 20.) 21 In the Second Screening order issued October 23, 2023, the Court found Plaintiff’s first 22 amended complaint plausibly alleged cognizable Fourteenth Amendment equal protection clause 23 claims against Defendants Martinez and Peterson. (Doc. 23.) However, Plaintiff’s first amended 24 complaint failed to state any other cognizable claim against any defendant. (Id. at 4-10.) Plaintiff 25 was ordered to select one of three options: (1) notify the Court in writing that she does not wish to 26 file a second amended complaint and was willing to proceed only on the Fourteenth Amendment 27 equal protection claims against Defendants Martinez and Peterson, the remaining claims against 28 any defendant to be dismissed; or (2) file a second amended complaint curing the deficiencies 1 identified by the Court in the Second Screening Order; or (3) file a notice of voluntary dismissal. 2 (Id. at 11.) 3 On November 6, 2023, Plaintiff filed a notice indicating the election to proceed on the 4 claims found cognizable by the Court and stated she did not wish to file a second amended 5 complaint. (Doc. 24.) 6 II. 7 Accordingly, for the reasons set forth in the Court’s Second Screening Order (Doc. 23), 8 FINDINGS AND RECOMMENDATIONS the Court RECOMMENDS as follows: 1. This action proceed only on Plaintiff’s Fourteenth Amendment Equal Protection 9 10 claims against Defendants Martinez and Peterson; 2. The remaining claims in Plaintiff’s first amended complaint filed February 9, 2023, 11 12 (Doc. 20), be DISMISSED; and 13 3. The Clerk of the Court modify the docket in this action to add Defendant N. Peterson as named in Plaintiff’s first amended complaint. 14 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 17 service of these Findings and Recommendations, a party may file written objections with the 18 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Failure to file objections within the specified time may result in waiver of 20 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 25 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto November 9, 2023 . UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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