(PC) Patrick v. Hitchcock, et al., No. 2:2017cv01045 - Document 12 (E.D. Cal. 2018)

Court Description: ORDER signed by District Judge Troy L. Nunley on 3/30/2018 ADOPTING 10 Findings and Recommendations in full, except as stated above and DISMISSING 1 Complaint, for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file an amended complaint. Plaintiff's 7 Motion for Injunctive Relief is DENIED. (York, M)
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(PC) Patrick v. Hitchcock, et al. Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS PATRICK, 12 13 14 No. 2:17-cv-01045-TLN-CMK Plaintiff, v. ORDER HITCHCOCK, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. 18 § 1983. The matter was referred to a United States Magistrate Judge pursuant to Eastern District 19 of California local rules. 20 On February 15, 2018, the magistrate judge filed findings and recommendations (the 21 “F&R”) herein, which were served on Plaintiff and which contained notice that Plaintiff may file 22 objections within a specified time. (ECF No. 10.) Timely objections to the F&R have been filed. 23 (ECF No. 11.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304(f), this 25 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 Court finds the F&R to be supported by the record and by proper analysis, except as set forth in 27 the next paragraph. 28 The objections fail to identify any factual or legal error in the F&R. (ECF No. 11.) 1 Dockets.Justia.com 1 Rather, the Court construes the objections as a request for leave to file an amended complaint. 2 “[A] district court should grant leave to amend even if no request to amend the pleading was 3 made, unless it determines that the pleading could not possibly be cured by the allegation of other 4 facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). The Court will give two 5 representative examples of deficiencies in Plaintiff’s complaint identified in the F&R. First, the 6 F&R states that “[P]laintiff has not alleged facts sufficient to show that, objectively, he was 7 incarcerated under conditions presenting a substantial safety risk.” (ECF No. 10 at 4.) Second, 8 the F&R states Plaintiff “fails to allege any facts to suggest that any defendant knew of or should 9 have known of a safety risk, or that any defendant knew of a risk and disregarded it.” (ECF No. 10 10 at 4.) These are of the sort of deficiencies that additional factual allegations might cure. 11 Consequently, the Court will grant Plaintiff leave to file an amended complaint. Anything in the 12 F&R to the contrary is not adopted. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. 15 16 The findings and recommendations filed February 15, 2018 (ECF No. 10), are adopted in full, except as stated above. 2. Plaintiff’s complaint (ECF No. 1) is dismissed for failure to state a claim. Plaintiff 17 has thirty (30) days from the date this Order is filed to file an amended complaint. The amended 18 complaint must bear the docket number assigned to this case and must be labeled “First Amended 19 Complaint.” 20 3. Plaintiff’s motion for injunctive relief (ECF No. 7) is denied. 21 22 Dated: March 30, 2018 23 24 Troy L. Nunley United States District Judge 25 26 27 28 2