(PC) McQueen v. State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMORY MCQUEEN, No. 2:17-cv-0378 WBS AC P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this 18 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 12, 2022, the undersigned screened plaintiff’s Second Amended Complaint 21 (“SAC”) and determined that it contained some claims against some defendants that are suitable 22 to proceed, as well as others that fail to state a claim. ECF No. 24. Accordingly, plaintiff was 23 given the choice either to amend the SAC or to proceed solely on the viable claims, and he was 24 given fourteen days within which to inform the court of his decision. See id. at 9-10. 25 More than fourteen days have passed, and plaintiff has not filed the Notice on How to 26 Proceed that was sent to him, nor has he informed the court in any other way how he would like 27 to proceed. In accordance with terms of the screening order (see ECF No. 24 at 9), the 28 undersigned now assumes that plaintiff does not wish to file a third amended complaint. ] The analysis of the screening order at ECF No. 24 is hereby incorporated in full. For the 2 || reasons there explained, IT IS HEREBY RECOMMENDED that: 3 1. This case proceed on the following claims of the Second Amended Complaint: 4 a. First Amendment retaliation against defendant Morton only; and 5 b. Eighth Amendment excessive force against defendants Morton, Esquivel, Diaz, 6 Prado, Barrett, Rankins, Ma, and Saetern only; 7 2. All other claims and defendants, including plaintiffs putative due process claim(s) 8 and defendants E. Fajardo and N. Ny, be dismissed without prejudice pursuant to 18 9 ULS.C. § 1915A(b)(1). 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, Plaintiff may file written objections 13 || with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 14 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 16 | (9th Cir. 1991). 17 || DATED: February 7, 2022 ~ Ig ththienr—Chnp—e_ ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28