(PC) Cunningham v. Perdroza ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 L.C. CUNNINGHAM, Case No. 1:23-cv-00041-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 v. THAT THIS CASE PROCEED ONLY ON PLAINTIFF’S FAILURE-TO-PROTECT 13 J. PERDROZA, et al., CLAIMS AGAINST DEFENDANTS J. PERDROZA, S. SOVOIE, AND D. 14 Defendants. MENDEZ, AND THAT PLAINTIFF’S 15 FIRST AMENDED COMPLAINT BE DEEMED WITHDRAWN 16 (ECF Nos. 1, 7, 8, 10) 17 18 OBJECTIONS, IF ANY, DUE WITHIN 14 DAYS 19 20 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 21 22 23 Plaintiff L.C. Cunningham is a state prisoner proceeding pro se and in forma pauperis 24 in this civil rights action filed on January 9, 2023. (ECF Nos. 1, 6). Plaintiff alleges that 25 Defendants, who are correctional officers at Kern Valley State Prison (KVSP), have verbally 26 harassed him, failed to protect him from other inmates’ verbal harassment, and refused to let 27 him out of his cell at “pill call.” Based on these allegations, Plaintiff asserts deliberate- 28 indifference, failure-to-protect, and state-tort claims. 1 On February 24, 2023, the Court screened Plaintiff’s complaint and concluded that only 2 Plaintiff’s failure-to-protect claims against Defendants J. Perdroza, S. Sovoie, and D. Mendez 3 should proceed based on his allegations that these Defendants labeled him a “snitch.” (ECF No. 4 7). The Court explained why the complaint otherwise failed to state any claims and gave 5 Plaintiff thirty days to either file (1) a notice to go forward on his cognizable claims, (2) an 6 amended complaint; or (3) a notice to stand on his complaint and have it reviewed by a district 7 judge. 8 Plaintiff filed a first amended complaint dated February 25, 2023, which strongly 9 suggested that he prepared and mailed it before he received the Court’s screening order. (ECF 10 No. 8). Accordingly, the Court issued an order on March 3, 2023, noting that it would take no 11 action on the first amended complaint until it heard further as to how Plaintiff wished to 12 proceed. (ECF No. 9). Notably, the Court stated that, if Plaintiff timely filed a notice to proceed 13 on his cognizable claims, it would treat Plaintiff’s first amended complaint as withdrawn, 14 meaning that it would assume that Plaintiff did not wish to proceed on it. On March 9, 2023, 15 Plaintiff filed a notice sating that he wanted to proceed only on his failure-to-protect claims 16 against Defendants J. Perdroza, S. Sovoie, and D. Mendez. (ECF No. 10). 17 Accordingly, for the reasons set forth in the Court’s screening order that was entered on 18 February 24, 2023 (ECF No. 7), and because Plaintiff has notified the Court that he wants to 19 proceed on the claims that the Court found should proceed past screening (ECF No. 10), IT IS 20 RECOMMENDED that all claims and Defendants be dismissed, except for Plaintiff’s failure- 21 to-protect claims against Defendants J. Perdroza, S. Sovoie, and D. Mendez based on Plaintiff’s 22 allegations that these Defendants labeled him a “snitch.” Further, IT IS RECOMMENDED that 23 Plaintiff’s first amended complaint (ECF No. 8) be deemed withdrawn. 24 These findings and recommendations will be submitted to the United States district 25 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 26 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 27 file written objections with the Court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 1 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 3 || (9th Cir. 1991)). 4 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 5 || judge to this case. 6 7 IT IS SO ORDERED. 8 || Dated: _-March 13, 2023 Ife ey —— 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28