(PC) Seymour v. Ledbetter ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AARON D. SEYMOUR, Case No.: 1:22-cv-00989-JLT-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIM THREE IN PLAINTIFF’S 13 v. COMPLAINT 14 LEDBETTER, (Docs. 13 & 14) 15 Defendant. 14-DAY OBJECTION PERIOD 16 17 Plaintiff Aaron D. Seymour is proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On May 16, 2023, this Court issued its Order Vacating Findings and Recommendations to 21 Dismiss Claim Three in Plaintiff’s Complaint and First Screening Order. (Doc. 13.) In its First 22 Screening Order, the Court found Plaintiff’s complaint stated cognizable First Amendment 23 retaliation (Claim I) and Eighth Amendment failure to protect (Claim II) claims against 24 Defendant Ledbetter, the sole defendant named in the action. (Id. at 3-6.) However, the Court 25 further found that Plaintiff had failed to allege compliance with the Government Torts Claim Act, 26 a prerequisite concerning Plaintiff’s state law claims for slander and/or defamation against 27 Ledbetter. (Id. at 6-8.) Plaintiff was granted leave to amend his complaint to cure this deficiency 1 | was ordered to do one of the following within 21 days of service of the order: (1) to notify the 2 | Court he does not wish to file a first amended complaint and is willing to proceed only on the 3 | First Amendment retaliation and Eighth Amendment failure to protect claims against Defendant 4 | Ledbetter with the remaining claims against any defendant to be dismissed; or (2) to file a first 5 | amended complaint curing the deficiencies identified in the screening order; or (3) to file a notice 6 | of voluntary dismissal. (Ud. at 9.) 7 On May 26, 2023, Plaintiff filed a notice, under penalty of perjury, that he did “not wish 8 | to file an amended complaint & would like to proceed only on the First Amendment retaliation & 9 | Eighth Amendment failure to protect claims against Defendant Ledbetter.” (See Doc. 14.) 10 I. FINDINGS AND RECOMMENDATIONS 11 Accordingly, and for the reasons set forth in the Court’s screening order (Doc. 13), the 12 | Court RECOMMENDS that: 13 1. This action proceed only on Plaintiff's First Amendment retaliation (Claim I) and 14 Eighth Amendment failure to protect (Claim II) claims against Defendant Ledbetter; 15 and, 16 2. The remaining claim (Claim HI) against Defendant Ledbetter be DISMISSED. 17 These Findings and Recommendations will be submitted to the United States District 18 | Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of 19 | service of these Findings and Recommendations, a party may file written objections with the 20 | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 21 || Recommendations.” Failure to file objections within the specified time may result in waiver of 22 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 23 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 | IT IS SOORDERED. > | Dated: _May 31, 2023 | Wr bo 26 UNITED STATES MAGISTRATE JUDGE 27 28