(PC) Gulbronson v. Jones

Opinion

ERIC CONRAD GULBRONSON, No. 2:21-cv-01296-CKD P Plaintiff, v. ORDER AND GENA JONES, et al., FINDINGS AND RECOMMENDATIONS Defendants. Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on Eighth Amendment failure to protect claims against defendants Jora and Lujan. See ECF Nos. 17 (screening order), 18 (notice of election). I. Motion to Dismiss On December 14, 2022, defendants filed a motion to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 31. Defendants contend that plaintiff’s allegations fail to state an Eighth Amendment failure to protect claim and that defendants are entitled to qualified immunity. ECF No. 31. Specifically, defendants point out that the amended complaint does not contain any objective facts that they knew or should have known that plaintiff was at a serious risk of harm from inmate Brome. Id. at 5-6. To the extent that the amended complaint alleges that inmate Brome was a “violent assaultive prisoner,” defendants argue that this constitutes a generalized fear of harm which is not sufficient to state an Eighth Amendment claim. Id. at 6. Defendants further submit that they are entitled to qualified immunity because the amended complaint does not show a constitutional violation and even if it did, it was not clearly established that their conduct violated the Constitution. Id. at 10. In response to the motion, plaintiff filed a notice of his inability to proceed with this case. ECF No. 33. After reviewing the notice, the court construes it as a statement of non-opposition to the motion. ECF No. 33. Based on defendants’ motion and plaintiff's statement of non-opposition, the undersigned recommends granting the motion and dismissing this action without prejudice. II. Plain Language Summary for Pro Se Party The following information is meant to explain this order in plain English and is not intended as legal advice. After reviewing the motion to dismiss and your statement of non-opposition, the court is recommending that your first amended complaint be dismissed without prejudice. If you disagree with this recommendation, you have 14 days to explain why it is not the correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge assigned your case will then review the case and make the final decision in this matter. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this matter to a district judge. IT IS FURTHER RECOMMENDED that: 1. Defendants’ unopposed motion to dismiss (ECF No. 31) be granted. 2. Plaintiff’s first amended complaint be dismissed without prejudice. 3. The Clerk of Court shall close this case. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 14, 2023 / hice ANKE) flo CAROLYN K DELANEY? UNITED STATES MAGISTRATE JUDGE 1] 12/gulb1296.mtd.no.oppo