(PC) Barth v. Romero ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN DAMON BARTH, No. 2:19-CV-0891-JAM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROMERO, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On March 23, 2021, the Court issued an order addressing the sufficiency of 20 Plaintiff’s second amended complaint. See ECF No. 22. The Court concluded Plaintiff states a 21 cognizable Eighth Amendment medical care claim against Defendant Mey based on denial of a 22 breathing treatment in October 2018. See id. at 14. The Court found that Plaintiff’s second 23 amended complaint otherwise failed to state any cognizable claims against any other named 24 defendant. See id. Plaintiff was provided an opportunity to file a third amended complaint within 25 30 days and informed that, if no third amended complaint was filed within the time allowed 26 therefor, the action would proceed on the second amended complaint against Defendant Mey only 27 on Plaintiff’s Eighth Amendment medical care claim based on denial of a breathing treatment in 28 October 2018 and that all other claims and defendants would be dismissed. See id. Plaintiff was 1 | granted a 60-day extension of time to file a third amended complaint on May 10, 2021. See ECF 2 | No. 24. Plaintiff was granted a second 60-day extension of time on July 14, 2021. To date, 3 | Plaintiff has elected not to file a third amended complaint and the Court now recommends that the 4 | action proceed on the second amended complaint as against Mey only on Plaintiff's Eighth 5 | Amendment medical care claim based on denial of a breathing treatment in October 2018 and that 6 | all other claims and defendants be dismissed for the reasons set forth in the March 23, 2021, 7 | order. 8 Based on the foregoing, the undersigned recommends that: 9 1. The action proceed on the second amended complaint as against Mey only 10 | on Plaintiff's Eighth Amendment medical care claim based on denial of a breathing treatment in 11 || October 2018; and 12 2. All other claims and defendants be dismissed for failure to state a claim. 13 These findings and recommendations are submitted to the United States District 14 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 15 | after being served with these findings and recommendations, any party may file written objections 16 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 17 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 18 | Yist, 951 F.2d 1153 (9th Cir. 1991). 19 20 | Dated: October 25, 2021 1 DENNIS M. COTA 7 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28