(PC) Bates v. Darling ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 WILLIAM BATES, No. 2:21-cv-1613 WBS KJN 13 Plaintiff, 14 v. ORDER 15 CHAD DARLING, et al. 16 Defendants. 17 18 ----oo0oo---- 19 Plaintiff William Bates, a state prisoner proceeding 20 pro se, filed this civil rights action seeking relief under 42 21 U.S.C. § 1983. The matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 23 Rule 302. 24 On January 18, 2022, the magistrate judge issued an 25 Order finding that plaintiff’s complaint stated a potentially 26 cognizable claim against defendants Darling, Condon, Maloney, and 27 Stuhr for alleged Eighth Amendment violations. The Order also 28 1 dismissed, with leave to amend, defendants Lynch, Lee, Hobart, 2 and Bullard, finding the complaint did not state a cognizable 3 claim against them. (Docket No. 7.) The order directed 4 plaintiff to file a “Notice of Election” form stating whether he 5 chose to proceed solely as to his Eighth Amendment claims against 6 Darling, Condon, Maloney, and Stuhr and whether he consented to 7 dismissal of Lynch, Lee, Hobart, and Bullard without prejudice, 8 or whether he wished to file an amended complaint to state 9 cognizable claims against those defendants and delay service of 10 process. Plaintiff did not file a Notice of Election form. 11 On March 24, 2022, the magistrate judge filed findings 12 and recommendations herein which were served on plaintiff and 13 which contained notice to plaintiff that any objections to the 14 findings and recommendations were to be filed within fourteen 15 days. Plaintiff did not file objections to the findings and 16 recommendations. 17 The court presumes that any findings of fact are 18 correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 19 1979). The magistrate judge’s conclusions of law are reviewed de 20 novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 21 454 (9th Cir. 1983). Having reviewed the file, the court finds 22 the findings and recommendations as to defendants Lynch, Lee, 23 Hobart, and Bullard to be supported by the record and by the 24 magistrate judge’s analysis. The court construes plaintiff’s 25 failure to file a Notice of Election form as an indication that 26 that he does not wish to file an amended complaint seeking to 27 assert claims against those defendants. However, the court also 28 construes plaintiff’s failure to file a Notice of Election form enn ene SE NO OEE II 1 as an indication that plaintiff does wish to proceed against 2 defendants Darling, Condon, Maloney, and Stuhr, given that the 3 | Magistrate Judge previously found that the complaint states a 4 potentially cognizable claim against them. Accordingly, the 5 court declines to adopt the Findings and Recommendations to the 6 extent they recommend the entire action be dismissed with 7 prejudice. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. The findings and recommendations filed March 24, 2022 10 are adopted to the extent they are not inconsistent with this 11 order; 12 2. Defendants Lynch, Lee, Hobart, and Bullard are 13 dismissed from this action without prejudice, see Local Rule 110; 14 Fed. R. Civ. P. 41(b); and 15 3. This action is remanded to the assigned magistrate 16 judge for further proceedings as against defendants Darling, 17 Condon, Maloney, and Stuhr . 18 Dated: May 10, 2022 atte A hh be WILLIAM B. SHUBB 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28