(PC)Kirkwood v. Ramirez

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA LARRY KIRKWOOD, Case No.: 1:23-cv-00314-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS CERTAIN CLAIMS AND DEFENDANTS K. RAMIREZ, (Docs. 8 & 9) 15 Defendant.

14-DAY OBJECTION PERIOD Clerk of the Court to Assign District Judge Plaintiff Larry Kirkwood is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

I. RELEVANT BACKGROUND On October 17, 2023, the Court issued its First Screening Order. (Doc. 8.) It found Plaintiff stated a cognizable Eighth Amendment failure to protect claim against Defendant Ramirez but had failed to state any other cognizable claim against any other defendant. (Id. at 4- 14.) Plaintiff was directed to do one of the following within 21 days: (1) notify the Court he did not wish to file an amended complaint and instead was willing to proceed only on the Eighth Amendment failure to protect claim against Defendant Ramirez with the remaining claims to be dismissed; or (2) file a first amended complaint curing the deficiencies identified in the Court’s 1 On November 2, 2023, Plaintiff filed a notice indicating his wish to proceed only on the Eighth Amendment failure to protect claim against Defendant Ramirez. (Doc. 9.)

3 II. ORDERS AND RECOMMENDATIONS 4 The Clerk of the Court is DIRECTED to assign a District Judge to this action.

5 Further, for the reasons given above, the Court RECOMMENDS that: 6 1. This action PROCEED solely on Plaintiff’s Eighth Amendment failure to protect 7 claim against Defendant K. Ramirez, the remaining claims and defendants to be 8 dismissed; and 9 2. Defendant Warden Brian Phillips be DISMISSED from this action.

10 These Findings and Recommendations will be submitted to the district judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

19 Dated: November 13, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE