(PC)Bazzo v. Gates ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK MONACO BAZZO, Case No. 1:21-cv-01343-ADA-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 13 v. 14 S. GATES, et al., (Docs. 24-26) 15 Defendants. 16 17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action brought 18 pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On March 22, 2023, this Court issued its First Screening Order. (Doc. 25.) The Court 21 found Plaintiff’s first amended complaint (Doc. 24) stated cognizable Eighth Amendment 22 conditions of confinement and deliberate indifference to serious medical needs claims against 23 Defendants Gates and Bobbola, and the unknown Does 1 through 5, but failed to state any other 24 cognizable claims for relief against any other defendant. (Id. at 6-15.) Plaintiff was given 21 days 25 to elect one of the following options: (1) to file a second amended complaint curing the 26 deficiencies identified in the order; (2) to notify the Court of his willingness to proceed only on 27 the claims found cognizable by the Court; or (3) to file a notice of voluntary dismissal. (Id. at 15- 16.) 1 On March 31, 2023, Plaintiff filed a document titled “Plaintiff's Reply to Court’s First 2 | Screening Order.” (See Doc. 26.) Plaintiff notifies the Court that he “stipulates that he does NOT 3 | wish to file any amendments or any other claims not already claimed.” (/d. at 2.) Further, Plaintiff 4 | notes that he “DID comply with the Unruh Civil Rights Act by presenting the ‘GATES’ claim to 5 | the California’s Government Claim Office, thus complied with CTCA pursuant to CA Gov. Code 6 || section 810 ....” id.) To the extent Plaintiff is objecting to the Court’s finding that Plaintiff had 7 | failed to state a cognizable state law claim (see Doc. 25 at 14-15), Plaintiff is informed that he is 8 | free to raise this objection in response to the instant findings and recommendations. 9 I. FINDINGS AND RECOMMENDATIONS 10 Accordingly, and for the reasons set forth in the Court’s First Screening Order (Doc. 25), 11 | the Court RECOMMENDS that: 12 1. This action PROCEED on Plaintiff's Eighth Amendment conditions of confinement 13 and deliberate indifference to serious medical needs claims against Defendants Gates 14 and Bobbola, and unknown Does 1 through 5; and 15 2. The remaining claims in Plaintiffs first amended complaint be DISMISSED. 16 These Findings and Recommendations will be submitted to the United States District 17 | Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of 18 | service of these Findings and Recommendations, a party may file written objections with the 19 | Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 20 | Recommendations.” Failure to file objections within the specified time may result in waiver of 21 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 22 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 | IT IS SO ORDERED. | Dated: _ April 10, 2023 | Wr bo 25 UNITED STATES MAGISTRATE JUDGE 26 27 28