Patrick v. Hitchcock, et al.

Filing 12

ORDER signed by District Judge Troy L. Nunley on 3/30/2018 ADOPTING 10 Findings and Recommendations in full, except as stated above and DISMISSING 1 Complaint, for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file an amended complaint. Plaintiff's 7 Motion for Injunctive Relief is DENIED. (York, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS PATRICK,

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No. 2:17-cv-01045-TLN-CMK

Plaintiff,
v.

ORDER

HITCHCOCK, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District

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of California local rules.

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On February 15, 2018, the magistrate judge filed findings and recommendations (the

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“F&R”) herein, which were served on Plaintiff and which contained notice that Plaintiff may file

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objections within a specified time. (ECF No. 10.) Timely objections to the F&R have been filed.

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(ECF No. 11.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the F&R to be supported by the record and by proper analysis, except as set forth in

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the next paragraph.

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The objections fail to identify any factual or legal error in the F&R. (ECF No. 11.)
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Rather, the Court construes the objections as a request for leave to file an amended complaint.

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“[A] district court should grant leave to amend even if no request to amend the pleading was

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made, unless it determines that the pleading could not possibly be cured by the allegation of other

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facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). The Court will give two

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representative examples of deficiencies in Plaintiff’s complaint identified in the F&R. First, the

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F&R states that “[P]laintiff has not alleged facts sufficient to show that, objectively, he was

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incarcerated under conditions presenting a substantial safety risk.” (ECF No. 10 at 4.) Second,

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the F&R states Plaintiff “fails to allege any facts to suggest that any defendant knew of or should

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have known of a safety risk, or that any defendant knew of a risk and disregarded it.” (ECF No.

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10 at 4.) These are of the sort of deficiencies that additional factual allegations might cure.

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Consequently, the Court will grant Plaintiff leave to file an amended complaint. Anything in the

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F&R to the contrary is not adopted.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The findings and recommendations filed February 15, 2018 (ECF No. 10), are

adopted in full, except as stated above.
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Plaintiff’s complaint (ECF No. 1) is dismissed for failure to state a claim. Plaintiff

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has thirty (30) days from the date this Order is filed to file an amended complaint. The amended

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complaint must bear the docket number assigned to this case and must be labeled “First Amended

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Complaint.”

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3.

Plaintiff’s motion for injunctive relief (ECF No. 7) is denied.

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Dated: March 30, 2018

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Troy L. Nunley
United States District Judge

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