(PC) Hernandez v. Welch

Filing 11

ORDER ADOPTING 10 Findings and Recommendations to Dismiss Certain Claims signed by District Judge Jennifer L. Thurston on 3/25/2024. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONEL HERNANDEZ,

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Plaintiff,

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v.

Case No.: 1:23-cv-01563 JLT SKO
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS
CERTAIN CLAIMS
(Doc. 10)

J. WELCH,
Defendant.

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Leonel Hernandez seeks to hold J. Welch, a correctional sergeant at Kern Valley State

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Prison, liable for violations of his civil rights violations pursuant to 42 U.S.C. § 1983. The

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magistrate judge screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A(a) and found he

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states a cognizable claim against Defendant Welch for a threat to safety in violation of his rights

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arising under the Eighth Amendment. However, the magistrate judge determined Plaintiff did not

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state a cognizable claim for a violation of his First Amendment rights or “Damages to [his]

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Mental Health. (Doc. 8.) The magistrate judge granted Plaintiff the opportunity to cure the

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pleading deficiencies identified, or to notify the Court of his willingness to proceed only on the

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cognizable claim. (Id. at 9.) In response, Plaintiff indicated he “would like to proceed only on

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the Eighth Amendment threat to safety claim” and declined to amend. (Doc. 9.)

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After Plaintiff filed his response, the magistrate judge issued Findings and
Recommendations, reiterating the finding that Plaintiff stated a cognizable claim for “threat to

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safety” and recommending the action proceed only on that claim. (Doc. 10.) The Court served

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the Findings and Recommendations on Plaintiff and notified him that any objections were due

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within 14 days. (Id. at 2.) The Court advised him that the “failure to file objections within the

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specified time may result in the waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler,

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772 F.3d 834, 838-39 (9th Cir. 2014), Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).)

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Plaintiff did not file objections, and the time to do so has passed.

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According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this

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case. Having carefully reviewed the matter, the Court concludes the Findings and

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Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS:

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1. The Findings and Recommendations issued March 5, 2024 (Doc. 10) are ADOPTED

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in full.
2. This action PROCEEDS only on Plaintiff’s Eighth Amendment threat to safety claim

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against Defendant Welch only.

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3. All remaining claims in Plaintiff’s complaint are DISMISSED.

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4. This matter is referred to the assigned magistrate judge for further proceedings.

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IT IS SO ORDERED.
Dated:

March 25, 2024

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