(PC) Tucker v. Lopez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JORDAN TUCKER, Case No.: 1:22-cv-01458-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS CERTAIN CLAIMS AND DEFENDANT PFEIFFER 14 G. LOPEZ, et al., 14-DAY OBJECTION PERIOD 15 Defendants. Clerk of the Court to Assign District Judge 16 17 Plaintiff Jordan Tucker is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 The Court issued its First Screening Order on July 17, 2023. (Doc. 9.) It determined 21 Plaintiff’s complaint states a cognizable Eighth Amendment sexual assault claim against 22 Defendant Lopez (claim one) and a cognizable Fourth Amendment unreasonable search claim 23 against Defendant Lopez (claim two). (Id. at 5-9, 11.) The Court also found Plaintiff’s complaint 24 fails to state any other cognizable claim against any other defendant. (Id.) Plaintiff was directed to 25 elect one of the following options within 21 days of the date of service of the order: (1) to notify 26 the Court in writing that he does not wish to file a first amended complaint and that he is willing 27 to proceed only the claims found cognizable by the Court, with the remaining claims against any defendant to be dismissed; (2) to file a first amended complaint curing the deficiencies identified 1 by the Court in the screening order; or (3) to file a notice of voluntary dismissal. (Id. at 12.) 2 On July 24, 2023, Plaintiff filed a document titled “Notice to Inform the Court.” (Doc. 3 10.) Plaintiff indicates he does not wish to file a first amended complaint. (Id.) He is willing to 4 proceed only on the claims found cognizable by the Court, with the remaining claims and 5 defendants to be dismissed. (Id.) 6 II. CONCLUSION AND RECOMMENDATIONS 7 Based on the foregoing, the Clerk of the Court is directed to randomly assign a district 8 judge to this action. Further, and for the reasons set forth in the Court’s First Screening Order 9 (Doc. 9), the Court RECOMMENDS that: 10 1. Defendant Christian Pfeiffer be DISMISSED from this action; and, 11 2. The action PROCEED on the Eighth Amendment sexual assault claim against 12 Defendant Lopez (claim one) and the Fourth Amendment unreasonable search claim 13 against Defendant Lopez (claim two) as alleged in Plaintiff’s complaint, with the 14 remaining claims to be dismissed. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 17 service of these Findings and Recommendations, a party may file written objections with the 18 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Failure to file objections within the specified time may result in waiver of 20 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 24 Dated: July 28, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 25 26 27