(PC) McQueen v. State of California

Opinion

SAMORY MCQUEEN, No. 2:17-cv-0378 WBS AC P Plaintiff, v. FINDINGS AND RECOMMENDATIONS STATE OF CALIFORNIA, et al., Defendants. Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has 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 12, 2022, the undersigned screened plaintiff’s Second Amended Complaint (“SAC”) and determined that it contained some claims against some defendants that are suitable to proceed, as well as others that fail to state a claim. ECF No. 24. Accordingly, plaintiff was given the choice either to amend the SAC or to proceed solely on the viable claims, and he was given fourteen days within which to inform the court of his decision. See id. at 9-10. More than fourteen days have passed, and plaintiff has not filed the Notice on How to Proceed that was sent to him, nor has he informed the court in any other way how he would like to proceed. In accordance with terms of the screening order (see ECF No. 24 at 9), the undersigned now assumes that plaintiff does not wish to file a third amended complaint. ] The analysis of the screening order at ECF No. 24 is hereby incorporated in full. For the reasons there explained, IT IS HEREBY RECOMMENDED that: 1. This case proceed on the following claims of the Second Amended Complaint: a. First Amendment retaliation against defendant Morton only; and b. Eighth Amendment excessive force against defendants Morton, Esquivel, Diaz, Prado, Barrett, Rankins, Ma, and Saetern only; 2. All other claims and defendants, including plaintiffs putative due process claim(s) and defendants E. Fajardo and N. Ny, be dismissed without prejudice pursuant to 18 ULS.C. § 1915A(b)(1). These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). DATED: February 7, 2022 ~ Ig ththienr—Chnp—e_ ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE