(PC) Drake v. McComas

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAM DRAKE, No. 1:22-cv-1149 JLT BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. CERTAIN CLAIMS 14 MCCOMAS, et al., (Doc. 38) 15 Defendants. 16 17 Sam Drake is a pretrial detainee proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. The assigned magistrate judge screened Plaintiff’s 19 second amended complaint and found Plaintiff stated a cognizable claim for: (1) violation of the 20 First Amendment based on a facial challenge to FCJ Policy #E-120 and #E-410 against 21 Defendants Mims, McComas, and Zanoni; (2) violation of the First Amendment based on an as- 22 applied challenge to FCJ Policy #E-120 and #E-410 against Enriquez, Keoniyom, Nichols, and 23 Snyder; and (3) for violation of Due Process against officers who returned Plaintiff’s mail, 24 Enriquez, Keoniyom, Nichols, and Snyder. (Doc. 38 at 9-14.) The magistrate judge found these 25 were the only cognizable claims and recommended that to the extent Plaintiff sought to raise any 26 other claims, they be dismissed for failure to state a claim. (Id. at 15.) 27 The Court served the Findings and Recommendations on the parties and notified Plaintiff 28 that any objections were due within 14 days. (Doc. 38 at 15.) The Court advised Plaintiff that the 1 | failure to file objections within the specified time may result in the waiver of rights on appeal. 2 | Ud., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Neither Plaintiff nor 3 | Defendants filed objections, and the time to do so has passed. 4 According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this 5 | case. Having carefully reviewed the matter, the Court concludes the Findings and 6 | Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 7 1. The Findings and Recommendations issued on February 20, 2024 (Doc. 38) are 8 ADOPTED in full. 9 2. This action SHALL proceed on Plaintiff's second amended complaint, filed 10 November 2, 2023 (Doc. 37), only on the following claims: 11 a. violation of the First Amendment based on a facial challenge to FCJ Policy 12 #E-120 and #E-410 against Defendants Mims, McComas, and Zanoni; 13 b. violation of the First Amendment based on an as-applied challenge to FCJ 14 Policy #E-120 and #E-410 against Defendants Enriquez, Keoniyom, Nichols, 15 and Snyder; and 16 c. violation of Due Process for returning Plaintiff's mail against Defendants 17 Enriquez, Keoniyom, Nichols, and Snyder. 18 3. All other claims are DISMISSED from this action for failure to state a claim upon 19 which relief may be granted. 20 IT IS SO ORDERED. 22 | Dated: _-March 28, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 23 24 25 26 27 28