(PC) Powell v. Lynch

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ADAM RANDOLPH POWELL, No. 2:23-CV-0875-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS JEFF LYNCH, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, ECF No. 1.

19 On August 8, 2023, the Court issued an order addressing the sufficiency of Plaintiff’s complaint. See ECF No. 11. The Court determined that Plaintiff’s complaint states cognizable Eighth Amendment safety claims against Defendants Moirara and Lively arising from a January 22, 2022, incident at the California Medical Facility. See id. The Court also determined that Plaintiff’s claims against the prison warden, Defendant Lynch, are insufficient.

24 See id. Plaintiff was provided leave to amend and cautioned that, if no amended complaint was filed within the 30-day time period provided therefor, the action would proceed on Plaintiff’s safety claims against Defendants Moirara and Lively and that the Court would recommend dismissal of Defendant Lynch. See id. As of November 2, 2023, Plaintiff had not filed an amended complaint and the Court directed service on Defendants Moirara and Lively consistent | with the August 8, 2023, order. See ECF No. 12. The Court now recommends dismissal of || Defendant Lynch.

3 Based on the foregoing, the undersigned recommends as follows: 4 1. This action proceed on Plaintiff's complaint, ECF No. 1, as to Plaintiff’s || Eighth Amendment safety claim against Defendants Moirara and Lively.

6 2. Plaintiffs claims against Defendant Lynch be DISMISSED for failure to || state a claim.

8 These findings and recommendations are submitted to the United States District || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days || after being served with these findings and recommendations, any party may file written objections || 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).

15 | Dated: January 11, 2024 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE