(PC)Kirkwood v. Ramirez

Filing 11

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)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY KIRKWOOD, 12 13 14 Plaintiff, v. K. RAMIREZ, 15 Case No.: 1:23-cv-00314-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS (Docs. 8 & 9) Defendant. 16 14-DAY OBJECTION PERIOD Clerk of the Court to Assign District Judge 17 18 19 Plaintiff Larry Kirkwood is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 I. 21 On October 17, 2023, the Court issued its First Screening Order. (Doc. 8.) It found 22 Plaintiff stated a cognizable Eighth Amendment failure to protect claim against Defendant 23 Ramirez but had failed to state any other cognizable claim against any other defendant. (Id. at 4- 24 14.) Plaintiff was directed to do one of the following within 21 days: (1) notify the Court he did 25 not wish to file an amended complaint and instead was willing to proceed only on the Eighth 26 Amendment failure to protect claim against Defendant Ramirez with the remaining claims to be 27 dismissed; or (2) file a first amended complaint curing the deficiencies identified in the Court’s 28 order, or (3) file a notice of voluntary dismissal. (Id. at 15-16.) RELEVANT BACKGROUND 1 2 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.) 3 II. ORDERS AND RECOMMENDATIONS 4 The Clerk of the Court is DIRECTED to assign a District Judge to this action. 5 Further, for the reasons given above, the Court RECOMMENDS that: 6 1. This action PROCEED solely on Plaintiff’s Eighth Amendment failure to protect 7 claim against Defendant K. Ramirez, the remaining claims and defendants to be 8 dismissed; and 9 2. Defendant Warden Brian Phillips be DISMISSED from this action. 10 These Findings and Recommendations will be submitted to the district judge assigned to 11 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 12 Findings and Recommendations, a party may file written objections with the Court. The 13 document should be captioned, “Objections to Magistrate Judge’s Findings and 14 Recommendations.” Failure to file objections within the specified time may result in waiver of 15 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 16 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Sheila K. Oberto November 13, 2023 . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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