(PC) Bates v. Darling

Opinion

----oo0oo---- WILLIAM BATES, No. 2:21-cv-1613 WBS KJN Plaintiff, v. ORDER CHAD DARLING, et al. Defendants. ----oo0oo---- Plaintiff William Bates, a state prisoner proceeding pro se, filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On January 18, 2022, the magistrate judge issued an Order finding that plaintiff’s complaint stated a potentially cognizable claim against defendants Darling, Condon, Maloney, and Stuhr for alleged Eighth Amendment violations. The Order also dismissed, with leave to amend, defendants Lynch, Lee, Hobart, and Bullard, finding the complaint did not state a cognizable claim against them. (Docket No. 7.) The order directed plaintiff to file a “Notice of Election” form stating whether he chose to proceed solely as to his Eighth Amendment claims against Darling, Condon, Maloney, and Stuhr and whether he consented to dismissal of Lynch, Lee, Hobart, and Bullard without prejudice, or whether he wished to file an amended complaint to state cognizable claims against those defendants and delay service of process. Plaintiff did not file a Notice of Election form. On March 24, 2022, the magistrate judge filed findings and recommendations herein which were served on plaintiff and which contained notice to plaintiff that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff did not file objections to the findings and recommendations. The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed the file, the court finds the findings and recommendations as to defendants Lynch, Lee, Hobart, and Bullard to be supported by the record and by the magistrate judge’s analysis. The court construes plaintiff’s failure to file a Notice of Election form as an indication that that he does not wish to file an amended complaint seeking to assert claims against those defendants. However, the court also construes plaintiff’s failure to file a Notice of Election form enn ene SE NO OEE II

as an indication that plaintiff does wish to proceed against defendants Darling, Condon, Maloney, and Stuhr, given that the Magistrate Judge previously found that the complaint states a potentially cognizable claim against them. Accordingly, the court declines to adopt the Findings and Recommendations to the extent they recommend the entire action be dismissed with prejudice. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations filed March 24, 2022 are adopted to the extent they are not inconsistent with this order; 2. Defendants Lynch, Lee, Hobart, and Bullard are dismissed from this action without prejudice, see Local Rule 110; Fed. R. Civ. P. 41(b); and 3. This action is remanded to the assigned magistrate judge for further proceedings as against defendants Darling, Condon, Maloney, and Stuhr . Dated: May 10, 2022 atte A hh be WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE