(PC) Kern v. Soloman ( 2024 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CURTIS KERN, No. 2:24-CV-1040-WBS-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 TAMERA LYNN SOLOMAN, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1. 19 On August 28, 2024, the Court issued an order addressing the sufficiency of 20 Plaintiff's complaint. See ECF No. 15. In that order, the Court determined that Plaintiff's 21 complaint appears to state a cognizable claim against Defendant Soloman as alleged in Plaintiff's 22 Claim I. See id. The Court found that Plaintiff's remaining Claim II and Claim II appear to be 23 barred. See id. Plaintiff was provided an opportunity to file a first amended complaint and 24 cautioned that, if no amended complaint was filed in the time permitted therefor, the action would 25 proceed on Claim I and the Court would recommend dismissal of Claim II and Claim III. See id. 26 To date, the time permitted for filing of a first amended complaint has passed and no first 27 amended complaint has been filed. By separate order, the Court will direct Plaintiff to submit the 28 necessary documents for service of the complaint on Defendant Soloman by the United States 1 |} Marshal. The Court herein recommends dismissal of Claim II and Claim III for the reasons 2 || outlined in the August 28, 2024, order. 3 Based on the foregoing, the undersigned recommends as follows: 4 1. This action proceed on Plaintiff's original complaint, ECF No. 1, as to his 5 || Claim I against Defendant Soloman. 6 2. Claim II and Claim III be dismissed with prejudice for failure to state a 7 || claim upon which relief can be granted. 8 These findings and recommendations are submitted to the United States District 9 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 || after being served with these findings and recommendations, any party may file written objections 11 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 12 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 | Dated: November 18, 2024 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28