(PC) Smithee v. California Correctional Institution

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DANA SMITHEE, et al. Case No. 1:19-cv-00004 JLT CDB 12 Plaintiffs, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 13 v. DEFENDANT PRATAP NARAYN’S MOTION TO DISMISS CALIFORNIA CORRECTIONAL INSTITUTION, et al. (Docs. 134, 141) Defendants.

17 Dana Smithee and E.M. filed a fifth amended complaint against Pratap Narayn, seeking to hold the defendant liable for deliberate indifference (cruel and unusual punishment) pursuant to 42 U.S.C. § 1983. (Doc. 129.) Defendant moved to dismiss the fifth amended complaint. (Doc.

20 134.)

21 The magistrate judge found Plaintiffs sufficiently pleaded a deliberate indifference claim against Defendant and recommended the motion be denied. (Doc. 141 at 10-18.) The magistrate judge also recommended Plaintiffs be granted leave to file a sixth amended complaint, “for the limited purpose of clarifying the damages sought in connection with Decedent’s pain and suffering.”1 (Id. at 18.) These Findings and Recommendations were served on all parties on August 18, 2023, and informed the parties that any objections were due 14 days after service.

27 (Id.) The parties were also advised the “failure to file objections within the specified time may | waive the right to appeal the District Court’s order.” (d., citing Wilkerson v. Wheeler, 772 F.3d 2 | 834, 839 (9th Cir. 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991).) No objections | were filed by either party. On August 24, 2023, Plaintiffs filed their sixth amended complaint.

4 | (Doc. 142.)

5 Pursuant to 28 U.S.C. § 636(b)(1)(C), and Local Rule 304, this Court conducted a de novo | review of this case. Having carefully reviewed the entire matter, this Court concludes the | Findings and Recommendations are supported by the record and by proper analysis. Accordingly, | the Court ORDERS: 9 1. The Findings and Recommendations (Doc. 141) are ADOPTED in full.

10 2. Defendant’s motion to dismiss (Doc. 134) is DENIED.

11 3. Plaintiffs’ sixth amended complaint filed on August 24, 2023 (Doc. 142) is 12 deemed the operative complaint.

13 4. Defendant SHALL have fourteen from the date of entry of this Order to respond 14 to the sixth amended complaint.

15 5. The action is referred to the assigned magistrate judge for further proceedings.

7 IT IS SO ORDERED.

1g | Dated: _September 8, 2023 Charis [Tourn TED STATES DISTRICT JUDGE