(PC) Hernandez v. Welch

• Court: District Court, E.D. California
• Decided: March 5, 2024
• Docket: 1:23-cv-01563
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEONEL HERNANDEZ, Case No.: 1:23-cv-01563-JLT-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 13 v. 14-DAY OBJECTION PERIOD 14 J. WELCH, 15 Defendant. 16 17 Plaintiff Leonel Hernandez is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. BACKGROUND 20 Plaintiff filed his complaint on November 6, 2023. (Doc. 1.) On February 21, 2024, the 21 Court issued its First Screening Order. (Doc. 8.) The Court found Plaintiff plausibly alleged an 22 Eighth Amendment threat to safety claim against Defendant Welch but failed to allege any other 23 cognizable claim. (Id. at 4-9.) Plaintiff was ordered to do one of the following within 21 days of 24 the date of service of the order: (1) notify the Court he did not wish to file a first amended 25 complaint and was willing to proceed only on his cognizable claim against Defendant Welch; or 26 (2) file a first amended complaint; or (3) file a notice of voluntary dismissal. (Id. at 9-10.) 27 On March 4, 2024, Plaintiff filed a notice indicating he “would like to proceed only on the Eighth Amendment threat to safety claim, and decline the first [amended] complaint.” (Doc. 9.) 1 II. DISCUSSION 2 For all the reasons provided in the Court’s First Screening Order (Doc. 8) issued February 3 21, 2024, and in light of Plaintiff’s subsequent notice (Doc. 9), the Court will recommend this 4 action proceed on Plaintiff’s Eighth Amendment threat to safety claim against Defendant Welch, 5 the remaining claims to be dismissed. 6 III. CONCLUSION AND RECOMMENDATIONS 7 Accordingly, the Court RECOMMENDS that: 8 1. This action PROCEED only on Plaintiff’s Eighth Amendment threat to safety claim 9 against Defendant Welch; and 10 2. Any remaining claims in Plaintiff’s complaint be DISMISSED. 11 These Findings and Recommendations will be submitted to the district judge assigned to 12 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 13 Findings and Recommendations, a party may file written objections with the Court. The 14 document should be captioned, “Objections to Magistrate Judge’s Findings and 15 Recommendations.” Failure to file objections within the specified time may result in waiver of 16 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 17 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 IT IS SO ORDERED. 19

20 Dated: March 5, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 21

22 23 24 25 26 27