(PC) Shuford v. Baker ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GUARY L. SHUFORD, No. 2:22-CV-1490-DAD-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. BAKER, 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. Pending before the Court is Plaintiff’s complaint, ECF No. 1. 19 On January 27, 2023, the Court issued an order addressing the sufficiency of 20 Plaintiff’s complaint as required under the Prison Litigation Reform Act. See ECF No. 12. In 21 that order, the Court summarized Plaintiff’s allegations as follows: 22 Plaintiff names the following as defendants: (1) D. Baker, (2) A. Gonzales; (3) M. Saetenurn; and (4) J. Lebeck. See ECF No. 1, pg. 23 2. All defendants are alleged to be correctional staff at California State Prison – Sacramento. See id. In his first claim for relief, Plaintiff alleges 24 that Defendant Baker violated his First Amendment rights by confiscating items sent to him by his wife. See id. at 3. Plaintiff also claims this 25 resulted in a violation of his rights to freedom of religious expression as he worships his wife and considers items sent to him from her as religious 26 gifts. See id. In his second claim for relief, Plaintiff alleges that Defendant Baker physically attacked him, in violation of his rights under 27 the Eighth Amendment. See id. at 4. 28 ECF No. 11, pg. 2. ] The court determined that Plaintiff states a cognizable Eighth Amendment 2 || excessive force claim against Defendant Baker. See id. at 2. The Court, however, found that 3 | Plaintiff has not stated a cognizable Eighth Amendment excessive force claim against any other 4 || named defendant, and that Plaintiff fails to state a cognizable claim for violation of his First 5 || Amendment rights based on confiscation of items. See id. at 2-7. Plaintiff was provided an 6 || opportunity to file a first amended complaint to address the deficiencies identified in the Court’s 7 || screening order. See id. at 7-8. Plaintiff was cautioned that failure to file a first amended 8 | complaint within the time permitted therefor would result in dismissal of those claims identified 9 || as defective. See id. at 8. To date, the time permitted to file an amended complaint has passed 10 | and Plaintiff has not done so. The Court, therefor, recommends dismissal of defective claims and 11 || defendants for the reasons outlined in the January 27, 2023, screening order. 12 Based on the foregoing, the undersigned recommends that: 13 1. This action proceed on Plaintiff's original complaint as to Plaintiff's Eighth 14 || Amendment excessive force claim against Defendant Baker; 15 2. Plaintiff's First Amendment claims be dismissed; and 16 3. Gonzales, Saetenurn, and Lebeck be dismissed as defendants to this action. 17 These findings and recommendations are submitted to the United States District 18 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 19 || after being served with these findings and recommendations, any party may file written objections 20 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 21 || Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 22 | Yist, 951 F.2d 1153 (9th Cir. 1991). 23 24 | Dated: April 4, 2023 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28