(PC) Pena v. Juarez

Opinion

DANIEL ANTHONY PENA, No. 1:23-cv-1400 JLT SAB (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDTIONS AND DISMISSING v. PLAINTIFF’S BANE ACT CLAIM J. JUAREZ, et al., (Doc. 12) Defendants. Daniel Anthony Pena seeks to hold the defendants liable for violations of his rights arising under federal and state law. (Doc. 11.) The assigned magistrate judge screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915A(a), and determined Plaintiff stated cognizable claims for excessive force and failure to protect. (Doc. 12 at 3-4.) However, the magistrate judge found Plaintiff failed to comply with the Government Claims Act and was unable to proceed with the claim arising under the Bane Act. (Id. at 5.) Therefore, the magistrate judge recommended the Bane Act claim be dismissed and the action proceed only on the claims arising under federal law. (Id. at 6.) The Findings and Recommendations were served on Plaintiff and contained a notice that any objections were due within 14 days. (Doc. 12 at 6.) The Court advised Plaintiff that the “failure to file objections within the specified time may result in waiver of his rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) Plaintiff did not file objections and the time to do so has passed. According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 1. The Findings and Recommendations issued December 14, 2023 (Doc. 12) are ADOPTED in full. 2. This action PROCEEDS only on Plaintiff's excessive force claim against Defendant J. Juarez and failure to protect claim against Defendant J. Valencia. 3. The state law Bane Act claim is DISMISSED. 4. This matter is referred to the assigned magistrate judge for further proceedings. b IT IS SO ORDERED. | Dated: _ January 11, 2024 Cerin | Tower TED STATES DISTRICT JUDGE