(PC)Coleman v. Moore

Opinion

SAAHDI ABDUL COLEMAN, Case No.: 1:23-cv-00324-KES-CDB Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS FOR v. PLAINTIFF’S FAILURE TO OBEY LOCAL RULES AND FAILURE TO MOORE, et al., PROSECUTE

Defendants. (Doc. 9)

FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND

14-DAY OBJECTION DEADLINE

Plaintiff Saahdi Abdul Coleman is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. section 1983. On November 6, 2024, the Court issued its First Screening Order. (Doc. 7.) It determined Plaintiff had plausibly alleged Eighth Amendment deliberate indifference to serious medical needs claims against Defendants Bean, Crawford, Doe 1, Doe 2, McDaniel, Moore, Russell, and Vasquez, but failed to allege any other cognizable claim against any other named Defendant. (Id. at 10-16.) Plaintiff was ordered to do one of the following within 21 days of the date of service of and was willing to proceed only on the Eighth Amendment Eighth Amendment deliberate indifference to serious medical needs claims against Defendants Bean, Crawford, Doe 1, Doe 2, McDaniel, Moore, Russell, and Vasquez, with the remaining claims against any defendant to be dismissed; or (2) to file a first amended complaint curing the deficiencies identified in the screening order; or (3) to file a notice of voluntary dismissal. (Id. at 18.) On December 4, 2024, when more than 21 days passed without a response, the Court issued Findings and Recommendations to dismiss this action without prejudice for Plaintiff’s failure to obey court orders and failure to prosecute. (Doc. 9.) On December 9, 2024, Plaintiff filed a notice indicating he was willing to proceed on the claims the Court deemed cognizable and did not intend to file an amended complaint. (Doc. 10.) Because Plaintiff has now indicated he wishes to proceed on the claims the Court found cognizable in its November 6, 2024, screening order, the Court will vacate the Findings and Recommendations to dismiss this action. Nonetheless, the Court notes two issues concerning Plaintiff’s written notice to proceed on the cognizable claims. First, Plaintiff’s notice is dated November 21, 2024, but was not filed with the Court until December 9, 2024, which the Court perceives under the circumstances to reflect an unreasonable amount of time for delivery to the Court. Second, Plaintiff’s notice is not accompanied by a proof of service. As Plaintiff was advised in the First Informational Order in Prisoner/Civil Detainee Civil Rights Case, issued March 6, 2023, “on all documents filed with the Court, the pro se plaintiff must attach a Proof of Service, indicating the date on which the filing was turned over to prison authorities. A document submitted without proof of service may be stricken/returned or if filed after the deadline, deemed not timely filed.” (See Doc. 4 at 4 [& sample Proof of Service attached].) Plaintiff was required to provide a proof of service with this filing but did not do so. Moving forward, Plaintiff shall include a proof of service with every document submitted to the Court for filing. Despite the untimely notice, the Court will recommend this action proceed only on Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs claims against remaining claims against any defendant be dismissed. For the reasons given above, the Court VACATES the Findings and Recommendations (Doc. 9) issued December 4, 2024. Further, the Court RECOMMENDS that: 1. This action PROCEED only on the Eighth Amendment deliberate indifference to serious medical needs claims against Defendants Bean, Crawford, Doe 1, Doe 2, McDaniel, Moore, Russell, and Vasquez; 2. Defendants Dunn, Johnson, Perez, and Sanchez be DISMISSED; and 3. Any remaining claims be DISMISSED. These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(7). Within 14 days after being served with a copy of these Findings and Recommendations, a party may file written objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)(1)\(C). A party’s failure to file any objections within the specified time may result inthe waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). IT IS SOORDERED. > | Dated: _December 11, 2024 | Wr bo UNITED STATES MAGISTRATE JUDGE