(PC)Kirkwood v. Ramirez
FINDINGS and RECOMMENDATIONS to Dismiss Certain Claims and Defendants, signed by Magistrate Judge Sheila K. Oberto on 11/13/2023. Referred to Judge Thurston. Objections to F&R due within Fourteen-Days. (Maldonado, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No.: 1:23-cv-00314-SKO (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS CERTAIN CLAIMS AND
(Docs. 8 & 9)
14-DAY OBJECTION PERIOD
Clerk of the Court to Assign District Judge
Plaintiff Larry Kirkwood is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On October 17, 2023, the Court issued its First Screening Order. (Doc. 8.) It found
Plaintiff stated a cognizable Eighth Amendment failure to protect claim against Defendant
Ramirez but had failed to state any other cognizable claim against any other defendant. (Id. at 4-
14.) Plaintiff was directed to do one of the following within 21 days: (1) notify the Court he did
not wish to file an amended complaint and instead was willing to proceed only on the Eighth
Amendment failure to protect claim against Defendant Ramirez with the remaining claims to be
dismissed; or (2) file a first amended complaint curing the deficiencies identified in the Court’s
order, or (3) file a notice of voluntary dismissal. (Id. at 15-16.)
On November 2, 2023, Plaintiff filed a notice indicating his wish to proceed only on the
Eighth Amendment failure to protect claim against Defendant Ramirez. (Doc. 9.)
ORDERS AND RECOMMENDATIONS
The Clerk of the Court is DIRECTED to assign a District Judge to this action.
Further, for the reasons given above, the Court RECOMMENDS that:
1. This action PROCEED solely on Plaintiff’s Eighth Amendment failure to protect
claim against Defendant K. Ramirez, the remaining claims and defendants to be
2. Defendant Warden Brian Phillips be DISMISSED from this action.
These Findings and Recommendations will be submitted to the district judge assigned to
this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these
Findings and Recommendations, a party may file written objections with the Court. The
document should be captioned, “Objections to Magistrate Judge’s Findings and
Recommendations.” Failure to file objections within the specified time may result in waiver of
rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
/s/ Sheila K. Oberto
November 13, 2023
UNITED STATES MAGISTRATE JUDGE
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