(PC) Lorenz v. Movey

Opinion

PATRICK LORENZ, Case No.: 1:23-cv-01243-NODJ-SKO Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS v. 14-DAY OBJECTION PERIOD MOVEY, et al.,

Defendants. Plaintiff Patrick Lorenz is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on August 21, 2023. (Doc. 1.) On December 12, 2023, this Court issued its First Screening Order. (Doc. 8.) The Court found Plaintiff’s complaint plausibly alleged an Eighth Amendment excessive force claim against Defendant Movey and an Eighth Amendment deliberate indifference to serious medical needs claim against Defendant Campbell, but fails to allege any other cognizable claim against any other defendant. (Id. at 4-14.) Plaintiff was ordered to do one of the following within 21 days of the date of service of the order: (1) notify the Court he did not wish to file a first amended complaint and was willing to proceed on his cognizable claims; or (2) file a first amended complaint; or (3) file a notice of voluntary dismissal. (Id. at 14-15.) On January 18, 2024, when more than 21 days passed without a response, the Court issued Findings and Recommendations to dismiss this action for Plaintiff’s failure to obey court orders and failure to prosecute. (Doc. 10.) On January 22, 2024,1 Plaintiff filed a document titled “Request for Extension of Time; and Notification of Address Change.” (Doc. 11.) Plaintiff sought an extension of time within which to respond to the Court’s screening order following a transfer. (Id.) On January 23, 2024, the Court vacated the Findings and Recommendations to dismiss this action and ordered Plaintiff to comply with the Court’s First Screening Order within 21 days. (Doc. 12.) On January 24, 2024,2 Plaintiff filed a document titled “Notice: Notifying The Court Plaintiff Does Not Wish To File A First Amended Complaint.” (Doc. 13.) Plaintiff states he is willing to proceed only on the claims found cognizable by the Court. (Id.) For all the reasons set forth in the Court’s First Screening Order (Doc. 8) issued December 12, 2023, the Court will recommend this action proceed on Plaintiff’s Eighth Amendment excessive force claim against Defendant Movey and Eighth Amendment deliberate indifference to serious medical needs claim against Defendant Campbell, in their individual capacities, the remaining claims against any defendant to be dismissed. Based on the foregoing, the Court RECOMMENDS that: 1. This action PROCEED only on Plaintiff’s Eighth Amendment Eighth Amendment excessive force claim against Defendant Movey and Eighth Amendment deliberate indifference to serious medical needs claim against Defendant Campbell; and 2. Any remaining claims in Plaintiff’s complaint against any defendant be DISMISSED. These Findings and Recommendations will be submitted to the district judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 1 The document is dated and signed January 17, 2024. 2 This document is dated and signed January 21, 2024. Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Dated: January 25, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE