(PC) Baker v. Lynch

Opinion

TIMOTHY RAY BAKER, No. 2:19-cv-2617-KJM-DMC-P Plaintiff, v. ORDER J. LYNCH, et al., Defendants. Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules. On July 29, 2020, and September 15, 2020, the Magistrate Judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within the time specified therein. See F&R (July 29, 2020), ECF No. 16; F&R (Sept. 15, 2020), ECF No. 18. Timely objections to some of the findings and recommendations have been filed. Obj., ECF No. 17; Response, ECF No. 22. Plaintiff does not object to the September 15th finding and recommendations, see Response at 2. Consequently, all claims against Defendant Lynch and plaintiff’s claims regarding medical care and access to rehabilitative programming will be dismissed. To the extent plaintiff’s motion for a temporary restraining order, TRO, ECF No. 2, is based on claims that survive dismissal, the court agrees with the magistrate judge that plaintiff has not shown a likelihood of success on the merits of these claims. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations at ECF No. 18 are adopted in full. The material portions of the findings and recommendations at ECF No. 16 are adopted to the extent they are consistent with this order;1 2. Plaintiff’s motion for temporary restraining order, ECF No. 2, is denied; 3. All claims against defendant Lynch are dismissed and Lynch is dismissed as a defendant to this action; 4. Plaintiff’s claims related to medical care and access to rehabilitative programming are dismissed; 5. This action shall proceed on: (a) Plaintiff’s First Amendment retaliation claims against defendant Howard; and (b) Plaintiff’s Eighth Amendment safety claim against defendants Howard, Hontz, Frederick, Peterson and Roth; and 6. The matter is referred back to the Magistrate Judge for further proceedings. DATED: March 4, 2021. 1 The court notes a typographical error in the citation to Johnson v. Moore, 948 F.3d 517, 519 (9th Cir. 1991), on page four of the July 29, 2020 findings and recommendations. The proper citation for this case is to the F.2d reporter. Furthermore, the court does not adopt the language on the same page addressing irreparable harm.