Michael Hernandez Gonzalez v. Wise, et al.

Opinion

MICHAEL HERNANDEZ GONZALEZ, No. 1:23-cv-01501-KES-BAM (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS v. ACTION FOR FAILURE TO STATE A CLAIM WISE, et al., (Doc. 27) Defendants. Plaintiff Michael Hernandez Gonzalez is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. On September 4, 2024, the assigned magistrate judge screened the first amended complaint and issued findings and recommendations, recommending that this action be dismissed for failure to state a cognizable claim upon which relief may be granted. Doc. 27. The findings and recommendations provided that any objections were to be filed within 14 days. Id. at 11. Plaintiff timely filed objections on September 23, 2024, and filed further objections on October 9, 2024. Docs. 28, 29. In his objections, plaintiff argues that he stated a claim relating to his placement in the half-way program and the failure of various defendants to provide immediate and necessary care. However, plaintiff’s objections reassert the allegations already raised in the first amended complaint and which were correctly addressed in the findings and recommendations. Plaintiff’s objections do not cure the deficiencies identified by the magistrate judge. Plaintiff also argues that Agent Wise violated his first amendment rights by not informing the Court of plaintiffs hospitalization. Doc. 28 at 3. However, in addition to not raising this claim in the first amended complaint, plaintiff has not alleged sufficient facts to state a denial of access to courts claim. An access to courts claim relating to a lost opportunity to present a claim requires a plaintiff to show: (1) the loss of a non-frivolous or arguable underlying claim; (2) the official acts that frustrated the litigation; and (3) a remedy that may be awarded as recompense but that is not otherwise available in a future suit. See Phillips v. Hust, 477 F.3d 1070, 1075-76 (9th Cir. 2007), vacated on other grounds, 555 U.S. 1150 (2009). Plaintiffs allegations do not state a cognizable denial of access to the courts claim. In accordance with 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of this case. Having carefully reviewed the file, including plaintiffs objections, the Court finds the findings and recommendations to be supported by the record and by proper analysis. Accordingly: 1. The findings and recommendations issued on September 4, 2024, Doc. 27, are adopted in full; 2. This action is dismissed for failure to state a cognizable claim upon which relief may be granted; and 3. The Clerk of the Court is directed to close this case. 92 IT IS SO ORDERED. _ Dated: _ September 21, 2025 4h UNITED STATES DISTRICT JUDGE