(PC) Baker v. Lynch ( 2022 )

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. FINDINGS AND RECOMMENDATIONS 14 J. HOWARD, 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 motion to proceed on the first amended 19 complaint, see ECF No. 48. 20 On February 16, 2022, the Court issued an order addressing the sufficiency of 21 Plaintiff’s first amended complaint. See ECF No. 44. The Court found that Plaintiff states a 22 cognizable claim for retaliation against Defendant Howard, and a cognizable claim for failure to 23 protect as against Defendants Howard, Hontz, Frederick, Peterson, and Roth. See id. at 4. The 24 Court found that the first amended complaint fails to state any other cognizable claims. See id. 25 Specifically, the Court determined that Plaintiff’s third claim for relief under the Eighth 26 Amendment arising from alleged deliberate indifference to his mental health needs is insufficient 27 to proceed. See id. at 4-5. Plaintiff was provided an opportunity to amend. See id. at 5. On 28 April 8, 2022, after having been granted an extension of time to file a second amended complaint, 1 | Plaintiff filed a notice of his intent to proceed on the first amended complaint consistent with the 2 | Court’s February 16, 2022, order. See ECF No. 48. 3 Based on the foregoing, the undersigned recommends that: 4 1. Plaintiff's motion, ECF No. 48, to proceed on the first amended complaint 5 | be granted; and 6 2. This action proceed on the first amended complaint on Plaintiffs claims 7 | for retaliation against Defendant Howard, and a cognizable claim for failure to protect as against 8 || Defendants Howard, Hontz, Frederick, Peterson, and Roth, and that Plaintiffs third claim for 9 | medical deliberate indifference be dismissed. 10 These findings and recommendations are submitted to the United States District 11 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 12 | after being served with these findings and recommendations, any party may file written objections 13 | with the Court. Responses to objections shall be filed within 14 days after service of objections. 14 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 15 | Yist, 951 F.2d 1153 (9th Cir. 1991). 16 17 | Dated: April 25, 2022 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28