(PC) Johnson v. Kern County Jail ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERTO JOHNSON, 1:22-cv-01046-ADA-SKO (PC) 10 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS 11 v. ACTION FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDERS 12 KERN COUNTY JAIL, et al., AND FAILURE TO PROSECUTE 13 Defendants. (Doc. 12) 14 FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 15 DEFENDANTS 14-DAY OBJECTION PERIOD 16 17 18 Plaintiff Roberto Johnson is a former county and current state inmate proceeding pro se 19 and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 20 I. RELEVANT BACKGROUND 21 On June 7, 2023, this Court issued its First Screening Order. (Doc. 10.) The Court found 22 Plaintiff stated a cognizable Eighth Amendment failure to protect claim against Defendant Frye 23 but failed to state any other cognizable claim against any other defendant. (Id. at 5-10.) Plaintiff 24 was directed to do one of the following within 21 days: (1) notify the Court he did not wish to file 25 an amended complaint and instead was willing to proceed only on the Eighth Amendment failure 26 to protect claim against Defendant Frye with the remaining claims to be dismissed; or (2) file a 27 first amended complaint curing the deficiencies identified in the Court’s order, or (3) file a notice 28 1 of voluntary dismissal. (Id. at 11.) 2 On July 6, 2023, it came to the Court’s attention that Plaintiff had not been served with the 3 First Screening Order due to an oversight in the Clerk’s Office, and Plaintiff was served by mail 4 that same date. (See Docket Entry dated 7/6/23.) 5 On August 10, 2023, when more than 21 days elapsed without Plaintiff’s response, the 6 Court issued its Findings and Recommendations to Dismiss Action for Plaintiff’s Failure to Obey 7 Court Orders and Failure to Prosecute. (Doc. 12.) Plaintiff was advised any objections were due 8 within 14 days of the date of service. (Id. at 4.) 9 On August 30, 2023,1 Plaintiff filed his Objections to the Findings and Recommendations. 10 (Doc. 13.) 11 II. DISCUSSION 12 As noted above, following screening, Plaintiff was directed to file either a first amended 13 complaint, or a notice of his willingness to proceed on the claim found cognizable by the Court, 14 or a notice of voluntary dismissal. When Plaintiff did not respond, the Court issued Findings and 15 Recommendations to dismiss the action for Plaintiff’s failure to obey Court orders and failure to 16 prosecute. Plaintiff has now indicated he previously submitted notice indicating his wish to 17 proceed on the claim found cognizable by the Court. While the Court did not receive or file any 18 document or pleading from Plaintiff following issuance of the Court’s screening order until 19 receipt of Plaintiff’s objections filed August 30, 2023, Plaintiff has provided a copy of his 20 notification as an exhibit to his objections. That document states: “Plaintiff is notifying this Court 21 that he would like to proceed against Defendant Frye,” (Doc. 13 at 4-5 [Ex. A]), it is signed and 22 dated July 25, 2023, and includes a proof of service. (Id.) Accordingly, the Court will vacate its 23 Findings and Recommendations to dismiss this action for a failure to obey court orders and 24 failure to prosecute. 25 Further, because Plaintiff has indicated his willingness to proceed on his Eighth 26 Amendment failure to protect claim against Defendant Frye, the Court will now recommend the 27 28 1 The objections were signed and dated on August 22, 2023. 1 remaining claims and defendants named in Plaintiff’s complaint be dismissed and that this action 2 proceed on Plaintiff’s claim against Defendant Frye. 3 III. ORDERS AND RECOMMENDATIONS 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Findings and Recommendations to Dismiss Action for a Failure to Obey Court 6 Orders and Failure to Prosecute (Doc. 10) are VACATED; and 7 2. The Clerk of the Court is DIRECTED to designate Plaintiff’s “Ex Parte Application 8 to Conduct Limited Discovery” (Doc. 9 [docketed as “Motion to Conduct Limited 9 Discovery”]) as resolved. This request was addressed in the Court’s First Screening 10 Order (Doc. 10 at 10-11), and is moot in light of the recommendation below to dismiss 11 Does 1 through 10. 12 For the reasons given above, the Court RECOMMENDS that: 13 1. This action PROCEED solely on Plaintiff’s Eighth Amendment failure to protect 14 claim against Defendant Frye, the remaining claims to be dismissed; and 15 2. Defendants Kern County Jail, the City of Bakersfield, and Does 1 through 10, be 16 DISMISSED from this action. 17 These Findings and Recommendations will be submitted to the district judge assigned to 18 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 19 Findings and Recommendations, a party may file written objections with the Court. The 20 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 SO ORDERED. 25 26 Dated: September 1, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27 28