Opinion
CV-22-01318-PHX-MTL (ESW)
03-24-2023
Delaney Nelson, Plaintiff, v. David Shinn, et al., Defendants.
THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE.
This is a civil rights action brought by Arizona state prisoner Delaney Nelson (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On December 1, 2022, the Court issued an Order (Doc. 8) screening Plaintiff's four-count Complaint (Doc. 1). The Court found that (i) Count One of the original Complaint stated an Eighth Amendment medical claim against Defendants Jordan and Sidi; (ii) Count Two stated an Eighth Amendment medical claim against Defendant Centurion of Arizona, LLC (“Centurion”); and (iii) Count Four stated a negligence claim against Defendants Jordan, Sidi, Peeks, Shinn, and Centurion. The Court dismissed Count Three of the Complaint without prejudice. (Id. at 10). The Court also dismissed without prejudice Defendant Hofer because the Complaint did not allege any facts against Defendant Hofer. Defendants Jordan, Sidi, Peeks, Shinn, and Centurion have appeared. (Docs. 22, 23).
On March 20, 2023, Plaintiff lodged a First Amended Complaint. By separate Order, the undersigned screened Plaintiff's First Amended Complaint and required (i) Defendants Jordan and Sidi to answer Count One; (ii) Defendant Centurion to answer Count Two; (iii) Defendant Shinn to answer Count Three; and (iv) Defendants Jordan, Sidi, Peeks, Shinn, and Centurion to answer Count Four. The First Amended Complaint, however, fails to correct the deficiencies noted in the Court's December 2022 Screening Order with respect to Defendant Hofer. Like the original Complaint, the First Amended Complaint does not allege any facts against Defendant Hofer. Accordingly, IT IS RECOMMENDED that the Court dismiss Defendant Hofer without prejudice.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.