(PC) Johnson v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORLANDO JOHNSON, No. 21-cv-1450-KJM-EFB P 12 Plaintiff, 13 v. ORDER 14 UNKNOWN, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 17, 2022, the magistrate judge filed findings and recommendations, which were 21 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 22 recommendations were to be filed within fourteen days. Plaintiff has not filed objections to the 23 findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 ///// 1 | ....°). Having reviewed the file, the court finds the findings and recommendations to be 2 || supported by the record and by the proper analysis, including the magistrate judge’s conclusion 3 || that plaintiffs new allegation that he is housed with an unvaccinated inmate does not, standing 4 || alone, suffice to state an Eighth Amendment claim “based on failure to prevent harm... .” 5 || Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff does not allege that he was not given a 6 || mask or other tools to mitigate his exposure, nor does he aver that his unvaccinated cellmate 7 || contracted COVID-19, was exposed to COVID-19, or had not previously been infected such that 8 | he had no antibodies. See generally SAC, ECF No. 13. Accordingly, plaintiff's new allegation 9 || does not state a cognizable federal claim for relief. /d. at 847 (“a prison official may be held 10 | liable... for denying humane conditions of confinement only if he knows that inmates face a 11 | substantial risk of serious harm and disregards that risk by failing to take reasonable measures to 12 || abate it”). 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations filed March 17, 2022, are adopted in full; 15 2. Plaintiff's second amended complaint (ECF No. 13) is dismissed without leave to 16 amend for failure to state a claim upon which relief could be granted; and 17 3. The clerk of court is directed to close this case. 18 | DATED: September 6, 2022. 19 20 l ti / ¢ q_/ CHIEF NT] ED STATES DISTRICT JUDGE 22 23 24 25 26 27 28