Opinion
1:22-cv-01046-ADA-SKO (PC)
09-01-2023
ROBERTO JOHNSON, Plaintiff, v. KERN COUNTY JAIL, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR PLAINTIFF'S FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE (DOC. 12) FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS 14-DAY OBJECTION PERIOD
SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE
Plaintiff Roberto Johnson is a former county and current state inmate proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
I. RELEVANT BACKGROUND
On June 7, 2023, this Court issued its First Screening Order. (Doc. 10.) The Court found Plaintiff stated a cognizable Eighth Amendment failure to protect claim against Defendant Frye but failed to state any other cognizable claim against any other defendant. (Id. at 5-10.) 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 Frye with the remaining claims to be dismissed; or (2) file a first amended complaint curing the deficiencies identified in the Court's order, or (3) file a notice of voluntary dismissal. (Id. at 11.)
On July 6, 2023, it came to the Court's attention that Plaintiff had not been served with the First Screening Order due to an oversight in the Clerk's Office, and Plaintiff was served by mail that same date. (See Docket Entry dated 7/6/23.)
On August 10, 2023, when more than 21 days elapsed without Plaintiff's response, the Court issued its Findings and Recommendations to Dismiss Action for Plaintiff's Failure to Obey Court Orders and Failure to Prosecute. (Doc. 12.) Plaintiff was advised any objections were due within 14 days of the date of service. (Id. at 4.)
On August 30, 2023, Plaintiff filed his Objections to the Findings and Recommendations. (Doc. 13.)
The objections were signed and dated on August 22, 2023.
II. DISCUSSION
As noted above, following screening, Plaintiff was directed to file either a first amended complaint, or a notice of his willingness to proceed on the claim found cognizable by the Court, or a notice of voluntary dismissal. When Plaintiff did not respond, the Court issued Findings and Recommendations to dismiss the action for Plaintiff's failure to obey Court orders and failure to prosecute. Plaintiff has now indicated he previously submitted notice indicating his wish to proceed on the claim found cognizable by the Court. While the Court did not receive or file any document or pleading from Plaintiff following issuance of the Court's screening order until receipt of Plaintiff's objections filed August 30, 2023, Plaintiff has provided a copy of his notification as an exhibit to his objections. That document states: “Plaintiff is notifying this Court that he would like to proceed against Defendant Frye,” (Doc. 13 at 4-5 [Ex. A]), it is signed and dated July 25, 2023, and includes a proof of service. (Id.) Accordingly, the Court will vacate its Findings and Recommendations to dismiss this action for a failure to obey court orders and failure to prosecute.
Further, because Plaintiff has indicated his willingness to proceed on his Eighth Amendment failure to protect claim against Defendant Frye, the Court will now recommend the remaining claims and defendants named in Plaintiff's complaint be dismissed and that this action proceed on Plaintiff's claim against Defendant Frye.
III. ORDERS AND RECOMMENDATIONS
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendations to Dismiss Action for a Failure to Obey Court Orders and Failure to Prosecute (Doc. 10) are VACATED; and
2. The Clerk of the Court is DIRECTED to designate Plaintiff's “Ex Parte Application to Conduct Limited Discovery” (Doc. 9 [docketed as “Motion to Conduct Limited Discovery”]) as resolved. This request was addressed in the Court's First Screening Order (Doc. 10 at 10-11), and is moot in light of the recommendation below to dismiss Does 1 through 10.
For the reasons given above, the Court RECOMMENDS that:
1. This action PROCEED solely on Plaintiff's Eighth Amendment failure to protect claim against Defendant Frye, the remaining claims to be dismissed; and
2. Defendants Kern County Jail, the City of Bakersfield, and Does 1 through 10, be DISMISSED from this action.
These Findings and Recommendations will be submitted to the district judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(1). 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.