(PC) Baker v. Lynch

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA TIMOTHY RAY BAKER, No. 2:19-CV-2617-KJM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS J. HOWARD, et al., 15 Defendants.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Plaintiff’s motion to proceed on the first amended complaint, see ECF No. 48.

20 On February 16, 2022, the Court issued an order addressing the sufficiency of Plaintiff’s first amended complaint. See ECF No. 44. The Court found that Plaintiff states a cognizable claim for retaliation against Defendant Howard, and a cognizable claim for failure to protect as against Defendants Howard, Hontz, Frederick, Peterson, and Roth. See id. at 4. The Court found that the first amended complaint fails to state any other cognizable claims. See id. Specifically, the Court determined that Plaintiff’s third claim for relief under the Eighth Amendment arising from alleged deliberate indifference to his mental health needs is insufficient to proceed. See id. at 4-5. Plaintiff was provided an opportunity to amend. See id. at 5. On April 8, 2022, after having been granted an extension of time to file a second amended complaint, | Plaintiff filed a notice of his intent to proceed on the first amended complaint consistent with the | Court’s February 16, 2022, order. See ECF No. 48.

3 Based on the foregoing, the undersigned recommends that: 4 1. Plaintiff's motion, ECF No. 48, to proceed on the first amended complaint | be granted; and 6 2. This action proceed on the first amended complaint on Plaintiffs claims | for retaliation against Defendant Howard, and a cognizable claim for failure to protect as against || Defendants Howard, Hontz, Frederick, Peterson, and Roth, and that Plaintiffs third claim for | medical deliberate indifference be dismissed.

10 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)(). Within 14 days | after being served with these findings and recommendations, any party may file written objections | with the Court. Responses to objections shall be filed within 14 days after service of objections.

14 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. | Yist, 951 F.2d 1153 (9th Cir. 1991).

17 | Dated: April 25, 2022 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE