(PC) Baker v. Lynch ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY RAY BAKER, No. 2:19-cv-2617-KJM-DMC-P 12 Plaintiff, 13 v. ORDER 14 J. LYNCH, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 18 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by 19 Eastern District of California local rules. 20 On July 29, 2020, and September 15, 2020, the Magistrate Judge filed findings and 21 recommendations, which were served on the parties and which contained notice that the parties 22 may file objections within the time specified therein. See F&R (July 29, 2020), ECF No. 16; 23 F&R (Sept. 15, 2020), ECF No. 18. Timely objections to some of the findings and 24 recommendations have been filed. Obj., ECF No. 17; Response, ECF No. 22. Plaintiff does not 25 object to the September 15th finding and recommendations, see Response at 2. Consequently, all 26 claims against Defendant Lynch and plaintiff’s claims regarding medical care and access to 27 rehabilitative programming will be dismissed. To the extent plaintiff’s motion for a temporary 28 restraining order, TRO, ECF No. 2, is based on claims that survive dismissal, the court agrees 1 with the magistrate judge that plaintiff has not shown a likelihood of success on the merits of 2 these claims. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 5 findings and recommendations to be supported by the record and by the proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The findings and recommendations at ECF No. 18 are adopted in full. The 8 material portions of the findings and recommendations at ECF No. 16 are adopted to the extent 9 they are consistent with this order;1 10 2. Plaintiff’s motion for temporary restraining order, ECF No. 2, is denied; 11 3. All claims against defendant Lynch are dismissed and Lynch is dismissed 12 as a defendant to this action; 13 4. Plaintiff’s claims related to medical care and access to rehabilitative 14 programming are dismissed; 15 5. This action shall proceed on: (a) Plaintiff’s First Amendment retaliation 16 claims against defendant Howard; and (b) Plaintiff’s Eighth Amendment safety claim against 17 defendants Howard, Hontz, Frederick, Peterson and Roth; and 18 6. The matter is referred back to the Magistrate Judge for further proceedings. 19 DATED: March 4, 2021. 20 21 22 23 24 25 26 1 The court notes a typographical error in the citation to Johnson v. Moore, 948 F.3d 517, 519 (9th 27 Cir. 1991), on page four of the July 29, 2020 findings and recommendations. The proper citation for this case is to the F.2d reporter. Furthermore, the court does not adopt the language on the 28 same page addressing irreparable harm.