(PC) Houk v. Phillips ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN HOUK, Case No.: 1:23-cv-01540-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 13 v. DEFENDANT ALVA FOLLOWING SCREENING 14 BRYAN D. PHILLIPS, Warden, et al., 14-DAY OBJECTION PERIOD 15 Defendants. Clerk of the Court to Assign District Judge 16 17 18 Plaintiff Stephen Houk is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 Following screening of Plaintiff’s first amended complaint, the Court found Plaintiff 22 stated a plausible Eighth Amendment failure to protect claim against Defendant Alvarado-Torres; 23 Plaintiff, however, failed to allege any other cognizable claim against any other defendant. (Doc. 24 8.) Plaintiff was directed to do one of the following: (1) notify the Court in writing that he did not 25 wish to file a second amended complaint and was willing to proceed only on the Eighth 26 Amendment failure to protect claim against Defendant Alvarado-Torres with the remaining 27 claims against any defendant to be dismissed; (2) file a second amended complaint curing the 1 On November 8, 2024, Plaintiff filed a notice stating he did not wish to file a second 2 amended complaint and was “willing to proceed only on the Eighth Amendment failure to protect 3 claim against Defendant Alvarado-Torres, the remaining claims against any defendant to be 4 dismissed.” (See Doc. 9.) 5 II. DISCUSSION 6 For the reasons set forth in the Court’s Second Screening Order (Doc. 8) issued October 7 24, 2024, the Court will recommend that this action proceed only on Plaintiff’s Eighth 8 Amendment failure to protect claim against Defendant Alvarado-Torres, and that the remaining 9 claims be dismissed. 10 III. CONCLUSION AND RECOMMENDATIONS 11 The Court ORDERS the Clerk of the Court to take the following actions: 12 1. Assign a district judge to this action; 13 2. Add S. Alvarado-Torres as a defendant to the docket for this action as Plaintiff’s first 14 amended complaint identifies this individual as a named defendant; and 15 3. Terminate Bryan D. Phillips, “CCL Inmate Counselor,” and “Food Services Manager” 16 as named defendants on the docket for this action as Plaintiff’s first amended 17 complaint does not name these individuals as defendants and asserts no claims against 18 them. 19 Further, the Court RECOMMENDS that: 20 1. This action PROCEED only on Plaintiff’s Eighth Amendment failure to protect claim 21 against Defendant Alvarado-Torres; 22 2. Defendant Alva be DISMISSED from this action; and 23 3. Any remaining claims in Plaintiff’s first amended complaint against any defendant be 24 DISMISSED. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 27 after being served with a copy of these Findings and Recommendations, a party may file written 1 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 2 without leave of Court and good cause shown. The Court will not consider exhibits attached to 3 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 4 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 5 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 6 may be disregarded by the District Judge when reviewing these Findings and Recommendations 7 under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time 8 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 9 (9th Cir. 2014). 10 IT IS SO ORDERED. 11 12 Dated: November 12, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27