(PC) Pena v. Juarez

• Court: District Court, E.D. California
• Decided: January 11, 2024
• Docket: 1:23-cv-01400
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ANTHONY PENA, No. 1:23-cv-1400 JLT SAB (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDTIONS AND DISMISSING 13 v. PLAINTIFF’S BANE ACT CLAIM 14 J. JUAREZ, et al., (Doc. 12) 15 Defendants. 16 17 Daniel Anthony Pena seeks to hold the defendants liable for violations of his rights arising 18 under federal and state law. (Doc. 11.) The assigned magistrate judge screened Plaintiff’s First 19 Amended Complaint pursuant to 28 U.S.C. § 1915A(a), and determined Plaintiff stated 20 cognizable claims for excessive force and failure to protect. (Doc. 12 at 3-4.) However, the 21 magistrate judge found Plaintiff failed to comply with the Government Claims Act and was 22 unable to proceed with the claim arising under the Bane Act. (Id. at 5.) Therefore, the magistrate 23 judge recommended the Bane Act claim be dismissed and the action proceed only on the claims 24 arising under federal law. (Id. at 6.) 25 The Findings and Recommendations were served on Plaintiff and contained a notice that 26 any objections were due within 14 days. (Doc. 12 at 6.) The Court advised Plaintiff that the 27 “failure to file objections within the specified time may result in waiver of his rights on appeal.” 28 (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1 | 1391, 1394 (9th Cir. 1991).) Plaintiff did not file objections and the time to do so has passed. 2 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 3 | case. Having carefully reviewed the matter, the Court concludes the Findings and 4 | Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 5 1. The Findings and Recommendations issued December 14, 2023 (Doc. 12) are 6 ADOPTED in full. 7 2. This action PROCEEDS only on Plaintiff's excessive force claim against Defendant 8 J. Juarez and failure to protect claim against Defendant J. Valencia. 9 3. The state law Bane Act claim is DISMISSED. 10 4. This matter is referred to the assigned magistrate judge for further proceedings. 11 b IT IS SO ORDERED. 13 | Dated: _ January 11, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28