Opinion
1:22-cv-00989-JLT-CDB (PC)
05-31-2023
AARON D. SEYMOUR, Plaintiff, v. LEDBETTER, Defendant.
FINDINGS AND RECOMMENDATIONS TO DISMISS CLAIM THREE IN PLAINTIFF'S COMPLAINT
(Docs. 13 & 14)
14-DAY OBJECTION PERIOD
Plaintiff Aaron D. Seymour is proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983.
I. RELEVANT PROCEDURAL BACKGROUND
On May 16, 2023, this Court issued its Order Vacating Findings and Recommendations to Dismiss Claim Three in Plaintiff's Complaint and First Screening Order. (Doc. 13.) In its First Screening Order, the Court found Plaintiff's complaint stated cognizable First Amendment retaliation (Claim I) and Eighth Amendment failure to protect (Claim II) claims against Defendant Ledbetter, the sole defendant named in the action. (Id. at 3-6.) However, the Court further found that Plaintiff had failed to allege compliance with the Government Torts Claim Act, a prerequisite concerning Plaintiff's state law claims for slander and/or defamation against Ledbetter. (Id. at 6-8.) Plaintiff was granted leave to amend his complaint to cure this deficiency identified in Claim III, assuming he could do so in good faith. (Id. at 8.) Specifically, Plaintiff was ordered to do one of the following within 21 days of service of the order: (1) to notify the Court he does not wish to file a first amended complaint and is willing to proceed only on the First Amendment retaliation and Eighth Amendment failure to protect claims against Defendant Ledbetter with the remaining claims against any defendant to be dismissed; or (2) to file a first amended complaint curing the deficiencies identified in the screening order; or (3) to file a notice of voluntary dismissal. (Id. at 9.)
On May 26, 2023, Plaintiff filed a notice, under penalty of perjury, that he did “not wish to file an amended complaint & would like to proceed only on the First Amendment retaliation & Eighth Amendment failure to protect claims against Defendant Ledbetter.” (See Doc. 14.)
II. FINDINGS AND RECOMMENDATIONS
Accordingly, and for the reasons set forth in the Court's screening order (Doc. 13), the Court RECOMMENDS that:
1. This action proceed only on Plaintiffs First Amendment retaliation (Claim I) and Eighth Amendment failure to protect (Claim II) claims against Defendant Ledbetter; and,
2. The remaining claim (Claim III) against Defendant Ledbetter be DISMISSED.
These Findings and Recommendations will be submitted to the United States 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.