(PC) Gomez v. CDCR ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFREDO GOMEZ, No. 2:20-cv-0198 KJM AC P 12 Plaintiff, 13 v. ORDER 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND 15 REHABILITATION, et al., 16 Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 19 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On May 18, 2021, the magistrate judge issued findings and recommendations, which were 22 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 23 recommendations were to be filed within twenty-one days. See ECF No. 7. On July 1, 2021, 24 after receiving an extension of time, plaintiff filed objections to the findings and 25 recommendations. ECF Nos. 11, 12. On July 16, 2021, plaintiff filed a document styled 26 “Plaintiffs’ submittion [sic] of new information and declaration of Alfredo Gomez in support 27 thereof.” ECF No. 14. The court has considered plaintiff’s most recent filings, in the interests of 28 justice. ] In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 || court has conducted a de novo review of this case. Having reviewed the file, for the reasons 3 || explained below the court declines to adopt the findings and recommendations and refers the 4 || matter back to the assigned magistrate judge for further proceedings. 5 As the magistrate judge set out in the findings and recommendations, plaintiff alleges that 6 || he “is a former gang member who has previously been attacked by gang-affiliated inmates” and 7 || that he “will be at risk of assault in NDPF [Non-Designated Programming Facility] housing 8 | because of defendants’ failure to screen out active gang members, “predators,” and “sleepers” in 9 || the general population from NDPF placement.” ECF No. 7 at 3 (citing ECF No. 1 at 8-9, 17). 10 | The magistrate judge finds “[p]laintiff lacks standing to pursue his Eighth Amendment challenge 11 || to CDCR’s [California Department of Corrections and Rehabilitation’s] statewide NDPF 12 || program” because he was not housed in an NDPF unit when he filed the complaint, “his prison 13 | had not fully transitioned to NDPF housing” and he had not alleged “that he has been actually 14 || exposed to any unsafe condition, let alone concretely harmed by such exposure” and that his 15 || allegations were insufficient to demonstrate he was at risk of impending injury. /d. at 5-6. 16 In his July 16, 2021 declaration, plaintiff avers that he is now housed in an NDPF and that 17 | on July 7, 2021 his safety was jeopardized by three separate incidents. ECF No. 14 at 2. Good 18 || cause appearing, this matter will be referred back to the assigned magistrate judge for further 19 || proceedings, including consideration of whether plaintiffs July 16, 2021 filing should be 20 || construed as a supplemental pleading under Federal Rule of Civil Procedure 15(d) that cures any 21 || jurisdictional defect in the original complaint. See Northstar Financial Advisors Inc. v. Schwab 22 || Investments, 779 F.3d 1036, 1043-44 (9th Cir. 2015). 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. The findings and recommendations issued May 18, 2021 (ECF No. 7), are NOT 25 || ADOPTED; and 26 2. This matter is referred back to the assigned magistrate judge for further proceedings 27 || consistent with this order. (] 28 || DATED: May 24, 2022. tr | [Yi L\ ( A_Y CHIEF & ED STATES DISTRICT JUDGE