(PC) Gulbronson v. Jones ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC CONRAD GULBRONSON, No. 2:21-cv-01296-CKD P 12 Plaintiff, 13 v. ORDER AND 14 GENA JONES, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on Eighth Amendment failure 19 to protect claims against defendants Jora and Lujan. See ECF Nos. 17 (screening order), 18 20 (notice of election). 21 I. Motion to Dismiss 22 On December 14, 2022, defendants filed a motion to dismiss the amended complaint 23 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 31. Defendants 24 contend that plaintiff’s allegations fail to state an Eighth Amendment failure to protect claim and 25 that defendants are entitled to qualified immunity. ECF No. 31. Specifically, defendants point 26 out that the amended complaint does not contain any objective facts that they knew or should 27 have known that plaintiff was at a serious risk of harm from inmate Brome. Id. at 5-6. To the 28 extent that the amended complaint alleges that inmate Brome was a “violent assaultive prisoner,” 1 defendants argue that this constitutes a generalized fear of harm which is not sufficient to state an 2 Eighth Amendment claim. Id. at 6. Defendants further submit that they are entitled to qualified 3 immunity because the amended complaint does not show a constitutional violation and even if it 4 did, it was not clearly established that their conduct violated the Constitution. Id. at 10. 5 In response to the motion, plaintiff filed a notice of his inability to proceed with this case. 6 ECF No. 33. After reviewing the notice, the court construes it as a statement of non-opposition to 7 the motion. ECF No. 33. 8 Based on defendants’ motion and plaintiff's statement of non-opposition, the undersigned 9 recommends granting the motion and dismissing this action without prejudice. 10 II. Plain Language Summary for Pro Se Party 11 The following information is meant to explain this order in plain English and is not 12 intended as legal advice. 13 After reviewing the motion to dismiss and your statement of non-opposition, the court is 14 recommending that your first amended complaint be dismissed without prejudice. 15 If you disagree with this recommendation, you have 14 days to explain why it is not the 16 correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s Findings 17 and Recommendations.” The district judge assigned your case will then review the case and 18 make the final decision in this matter. 19 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign this 20 matter to a district judge. 21 IT IS FURTHER RECOMMENDED that: 22 1. Defendants’ unopposed motion to dismiss (ECF No. 31) be granted. 23 2. Plaintiff’s first amended complaint be dismissed without prejudice. 24 3. The Clerk of Court shall close this case. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 || objections shall be served and filed within fourteen days after service of the objections. The 3 || parties are advised that failure to file objections within the specified time may waive the right to 4 | appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 | Dated: March 14, 2023 / hice ANKE) flo 6 CAROLYN K DELANEY? 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 | 12/gulb1296.mtd.no.oppo 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28