(PC) Roberts v. Lynch

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- DAVID NATHANIEL ROBERTS, No. 2:20-cv-01349 WBS DB P 13 Plaintiff, 14 v. ORDER LYNCH, et al., 16 Defendants.

18 ----oo0oo---- 19 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 21 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.

23 On January 21, 2022, the Magistrate Judge issued an order finding that plaintiff’s complaint stated a potentially cognizable First Amendment claim against defendants Peluso and Jones but did not state any other cognizable claims in the complaint, including against the “Accounting Staff” and “Mail Delivery Staff”. (Docket No. 19.) The order directed plaintiff to notify the court of how he wished to proceed, and it included a form titled “Plaintiff’s Notice on How to Proceed” with two options: proceed immediately on his First Amendment interference with mail claim against defendants Peluso and Jones and voluntarily dismiss all other claims and defendants, or amend the complaint. Plaintiff did not file a Notice of How to Proceed form or otherwise notify the court of how he wished to proceed.

8 On May 19, 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 twenty-one days. (Docket No. 20.) Plaintiff has not filed objections to the findings and recommendations.

14 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 of the Magistrate Judge in her January 21, 2022 Order to be supported by the record and by the Magistrate Judge’s analysis. The court construes plaintiff’s failure to file a Notice on How to Proceed form as an indication that that he does not wish to file an amended complaint. However, the court also construes plaintiff’s failure to file a Notice on How to Proceed as an indication that plaintiff does wish to proceed against defendants Peluso and Jones on his First Amendment interference with mail claim, given that the Magistrate Judge previously found that the complaint states a potentially cognizable claim against nn ee □□□ neon nn on nn nn nn nn no ND EE them. Accordingly, the court declines to adopt the recommendation that the entire action be dismissed.

3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendations filed May 19, 2022 (Docket No. 20) are adopted to the extent they are not inconsistent with this Order; 7 2. Plaintiff may proceed on his First Amendment interference with mail claim against defendants Peluso and Jones; 9 3, All other claims and all other defendants are 10 dismissed from this action without prejudice, see Local Rule 110; 11 Fed. R. Civ. P. 41(b); and 12 3. This action is remanded to the assigned Magistrate 13 Judge for further proceedinas.

14 | Dated: September 26, 2022 Atte V WILLIAM B. SHUBB Is UNITED STATES DISTRICT JUDGE