(PC)Sykes v. Avenal State Prison ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TROY A. SYKES, Case No.: 1:23-cv-00966-JLT-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND 13 v. DEFENDANTS 14 AVENAL STATE PRISON, et al., 14-DAY OBJECTION PERIOD 15 Defendants. 16 17 Plaintiff Troy A. Sykes is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 I. INTRODUCTION 20 On September 16, 2024, the Court issued its Second Screening Order. (Doc. 12.) The 21 Court found Plaintiff stated a cognizable Eighth Amendment claim against Defendant John Doe 22 but failed to allege any other cognizable claim against any named defendant. (Id. at 4-9.) Plaintiff 23 was directed to do one of the following within 21 days: (1) notify the Court he did not wish to file 24 a second amended complaint and instead was willing to proceed only on the Eighth Amendment 25 conditions of confinement claim against Defendant Doe, the remaining claims to be dismissed; or 26 (2) file a second amended complaint curing the deficiencies identified in the Court’s order, or (3) 27 file a notice of voluntary dismissal. (Id. at 10.) 1 On September 26, 2024, Plaintiff filed a notice stating he wished to proceed only on the 2 claim found cognizable by the Court. (See Doc. 13.) 3 II. ORDER AND RECOMMENDATIONS 4 As an initial matter, the Court DIRECTS the Clerk of the Court to update the docket for 5 this action as follows: 6 1. Terminate “Avenal State Prison” and “Gavin Newsome” as these defendants were not 7 named in Plaintiff’s first amended complaint; 8 2. Add “John Doe” as a defendant on the docket as “John Doe (ASP Food Service Head 9 Manager)” was named in Plaintiff’s first amended complaint. 10 Further, for the reasons set forth above, the Court RECOMMENDS that: 11 1. This action PROCEED only on Plaintiff’s Eighth Amendment conditions of 12 confinement claim against Defendant John Doe; 13 2. Defendants Martin Gamboa, Hernandez (ASP Kitchen Staff), ASP Supervising 14 Correctional Cooks, J. Moekly, H. Moseley, and A. Shimmin be DISMISSED from 15 this action; and 16 3. Any remaining claims in Plaintiff’s first amended complaint be DISMISSED. 17 These Findings and Recommendations will be submitted to the district judge assigned to 18 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 19 Findings and Recommendations, a party may file written objections with the Court. The 20 document should be captioned, “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Failure to file objections within the specified time may result in waiver of 22 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 23 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 26 Dated: September 30, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 27