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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 JESSICA LYNN LOPEZ, Case No. 1:23-cv-01618-EPG (PC)

11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS 12 v. (ECF NO. 1) 13 H. SMITH, OBJECTIONS, IF ANY, DUE WITHIN 14 Defendant. FOURTEEN DAYS

15 AND

16 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 17 18 Plaintiff Jessica Lynn Lopez is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action filed pursuant to

. Plaintiff filed the complaint 20 commencing this action on November 16, 2023. (ECF No. 1). Plaintiff brought two claims 21 against a single defendant, correctional officer H. Smith, for violations of the First and Eighth 22 Amendments. (See generally ECF No. 1) 23 The Court screened Plaintiff’s complaint and issued Findings and Recommendations on 24 March 22, 2024. (ECF No. 9). The Court found that only Plaintiff’s First Amendment 25 retaliation claim against correctional officer H. Smith should proceed past screening. (Id. at 8). 26 The Court gave Plaintiff 30 days to either: 27 a. File a First Amended Complaint, which the Court will screen in 28 due course; 1 b. Notify the Court in writing that she does not wish to file an amended complaint and is instead willing to proceed against 2 Defendant H. Smith on a claim for retaliation in violation of the First Amendment; or 3 c. Notify the Court in writing that she wishes to stand on her 4 complaint, in which case the Court will issue findings and 5 recommendations to a district judge consistent with this order. Ud. at 10). On April 4, 2024, Plaintiff filed notice that she wants to proceed against Defendant 6 H. Smith only on the Frist Amendment retaliation claim that the Court found should proceed 7 past screening. (ECF No. 10). 8 Accordingly, for the reasons set forth in the Court’s screening order that was entered on 9 March 22, 2024 (ECF No. 9), and because Plaintiff has notified the Court that she wants to 10 proceed only on the claim that the Court found should proceed past screening (ECF No. 10), it 11 is RECOMMENDED that Plaintiff's second claim for Eighth Amendment violation be 12 dismissed, and this case proceed on Plaintiffs First Amendment retaliation claim against 13 correctional officer H. Smith. 14 These findings and recommendations will be submitted to the United States district 15 judge assigned to the case, pursuant to the provisions of Title

(b)(1). Within 16 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 17 file written objections with the Court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 19 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 20 Wheeler,

(9th Cir. 2014) (citing Baxter v. Sullivan,

, 1394 21 (9th Cir. 1991)). 22 23 IS SO ORDERED. 24 || Dated: _April 5, 2024 [fee Fy — UNITED STATES MAGISTRATE JUDGE 26 27 28