(PC) Roberts v. Lynch ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DAVID NATHANIEL ROBERTS, No. 2:20-cv-01349 WBS DB P 13 Plaintiff, 14 v. ORDER 15 LYNCH, et al., 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiff, a state prisoner proceeding pro se, has 20 filed this civil rights action seeking relief under 42 U.S.C. § 21 1983. The matter was referred to a United States Magistrate 22 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On January 21, 2022, the Magistrate Judge issued an 24 order finding that plaintiff’s complaint stated a potentially 25 cognizable First Amendment claim against defendants Peluso and 26 Jones but did not state any other cognizable claims in the 27 complaint, including against the “Accounting Staff” and “Mail 28 Delivery Staff”. (Docket No. 19.) The order directed plaintiff 1 to notify the court of how he wished to proceed, and it included 2 a form titled “Plaintiff’s Notice on How to Proceed” with two 3 options: proceed immediately on his First Amendment interference 4 with mail claim against defendants Peluso and Jones and 5 voluntarily dismiss all other claims and defendants, or amend the 6 complaint. Plaintiff did not file a Notice of How to Proceed 7 form or otherwise notify the court of how he wished to proceed. 8 On May 19, 2022, the Magistrate Judge filed findings 9 and recommendations herein which were served on plaintiff and 10 which contained notice to plaintiff that any objections to the 11 findings and recommendations were to be filed within twenty-one 12 days. (Docket No. 20.) Plaintiff has not filed objections to 13 the findings and recommendations. 14 The court presumes that any findings of fact are 15 correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 16 1979). The magistrate judge’s conclusions of law are reviewed de 17 novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 18 454 (9th Cir. 1983). Having reviewed the file, the court finds 19 the findings of the Magistrate Judge in her January 21, 2022 20 Order to be supported by the record and by the Magistrate Judge’s 21 analysis. The court construes plaintiff’s failure to file a 22 Notice on How to Proceed form as an indication that that he does 23 not wish to file an amended complaint. However, the court also 24 construes plaintiff’s failure to file a Notice on How to Proceed 25 as an indication that plaintiff does wish to proceed against 26 defendants Peluso and Jones on his First Amendment interference 27 with mail claim, given that the Magistrate Judge previously found 28 that the complaint states a potentially cognizable claim against nn ee □□□ neon nn on nn nn nn nn no ND EE 1 them. Accordingly, the court declines to adopt the 2 recommendation that the entire action be dismissed. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendations filed May 19, 5 2022 (Docket No. 20) are adopted to the extent they are not 6 inconsistent with this Order; 7 2. Plaintiff may proceed on his First Amendment 8 interference with mail claim against defendants Peluso and Jones; 9 3, All other claims and all other defendants are 10 dismissed from this action without prejudice, see Local Rule 110; 11 Fed. R. Civ. P. 41(b); and 12 3. This action is remanded to the assigned Magistrate 13 Judge for further proceedinas. 14 | Dated: September 26, 2022 Atte V WILLIAM B. SHUBB Is UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28