(PC) Smith v. CALPIA

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA PATRICK SMITH, Case No. 2:24-cv-00117-KJM-JDP (PC) 12 Plaintiff, 13 v. ORDER CALPIA, et al., 15 Defendants.

17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

20 On October 1, 2024, the Magistrate Judge filed findings and recommendations, which recommended the dismissal of this action without leave to amend. ECF No. 14. The findings and recommendations were served on plaintiff and set a fourteen-day deadline for any objections. Id. at 2. Plaintiff objected to the findings and recommendations after that deadline had passed. ECF No. 15. The court has considered the late objections and has reviewed the matter de novo. See 28 U.S.C. § 636(b)(1). Plaintiff also filed a notice of appeal of the findings and recommendations. ECF No. 16. That notice does not deprive this court of jurisdiction. See Serine v. Peterson, 989 F.2d 371, 372–73 (9th Cir. 1993).

28 ///// ] Plaintiff alleges defendants were negligent, but pursues a claim under 42 U.S.C. § 1983.

2 || The Magistrate Judge correctly concluded that allegations of negligence cannot support a claim || under § 1983. The court adopts that recommendation and dismisses the complaint.

4 The Magistrate Judge recommends dismissal without leave to amend. The court cannot || exclude the possibility that plaintiff could assert a viable claim under 42 U.S.C. § 1983, such as a || claim based on the Eighth Amendment. Cf Objections at 2 (“Plaintiff in this case was sent to || prison as punishment, not for punishment.”). The court therefore permits an amended complaint.

8 | See AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006) (“Rule || 15(a) is very liberal and leave to amend shall be freely given when justice so requires.” (citation | and quotation marks omitted)).

11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The findings and recommendations filed October 1, 2024, are adopted in part as || discussed above; 14 2. Plaintiff's amended complaint, ECF No. 13, is dismissed with leave to amend; 15 3. Any amended complaint must be filed within thirty days of the date plaintiff receives | acopy of this order; and 17 4. This action 1s referred back to the assigned Magistrate Judge for all further pretrial | proceedings.

19 | DATED: December 6, 2024.

21 □ STATES DISTRICT JUDGE