(PC)Kirkwood v. Ramirez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY KIRKWOOD, Case No.: 1:23-cv-0314 JLT SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS 13 v. CERTAIN CLAIMS AND DEFENDANTS 14 K. RAMIREZ, (Doc. 11) 15 Defendant. 16 17 Larry Kirkwood seeks to hold the defendants liable for civil rights violations pursuant to 18 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 The magistrate judge screened the complaint pursuant to 28 U.S.C. § 1915A(a) and found 21 Plaintiff stated a cognizable claim against Defendant K. Ramirez for failure to protect under the 22 Eighth Amendment. (Doc. 8 at 4-8.) However, the magistrate judge found Plaintiff did not state 23 cognizable claims for violations of his rights arising under the First and Fourteenth Amendments. 24 (Id. at 8-14.) The magistrate judge also determined Plaintiff did not state a claim against Warden 25 Brian Phillips. (See id. at 5-14.) The Court granted Plaintiff an opportunity to amend his 26 complaint or to proceed on the claim found cognizable. (Id. at 15.) In response, Plaintiff 27 indicated that he “wish[ed] to proceed only on the 8th Amendment claim and all other claims be dismissed.” (Doc. 9 at 1.) He also consented to the dismissal of defendants other than Ramirez. 1 | dd.) 2 On November 13, 2023, the magistrate judge issued Findings and Recommendations, and 3 || recommended the action proceed only on the claim found cognizable, with all other claims and 4 | defendant Phillips dismissed. (Doc. 11.) The Findings and Recommendations were served on 5 | Plaintiff, and contained a notice that any objections were due within 14 days. (Ud. at 2.) Plaintiff 6 | was also informed the “[f]ailure to file objections within the specified time may result in waiver 7 | of rights on appeal.” (/d., citing Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Baxter 8 | v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) To date, no objections have been filed. 9 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 10 | case. Having carefully reviewed the matter, the Court concludes the Findings and 11 | Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 12 1. The Findings and Recommendations issued on November 13, 2023 (Doc. 11) are 13 ADOPTED in full. 14 2. This action SHALL proceed only on Plaintiff's Eighth Amendment failure to 15 protect claim against Defendant Ramirez. 16 3. The remaining claims in Plaintiff's complaint are DISMISSED; 17 4. Warden Brian Phillips is DISMISSED from this action. 18 5. The matter is referred to the magistrate judge for further proceedings. 19 99 | IT IS SO ORDERED. 21 Dated: _ December 1, 2023 Charis [Tourn TED STATES DISTRICT JUDGE 23 24 25 26 27 28