Opinion
2:19-CV-2617-KJM-DMC-P
08-16-2021
TIMOTHY RAY BAKER, Plaintiff, v. J. HOWARD, et al., Defendants.
ORDER
DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE
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 filing captioned “Amended, Supplemental 42 U.S.C. § 1983 Complaint In re: To Magistrate Judge KJM May 26, 2021, Order - Findings and Recommendations.” ECF No. 36.
On July 29, 2020, the Court screened Plaintiff's original complaint. See ECF No. 14. The Court concluded as follows:
The Court finds plaintiff states a cognizable claim for retaliation against defendant Howard based on plaintiff's allegations that defendant Howard took adverse action in falsifying an Informational Chrono because plaintiff had filed a staff complaint against her. The Court also finds plaintiff states a cognizable safety claim against the Committee Defendants - Howard, Hontz, Frederick, Peterson, and Roth - based on plaintiff's allegations that these defendants placed him on B Yard despite their knowledge of danger related to ongoing gang warfare.Id. at 4.
The Court also concluded that Plaintiff failed to state a cognizable claim against Defendant Lynch, or any claims based on denial of medical care or access to rehabilitative programming. See id. at 4-7. Plaintiff was permitted leave to file a first amended complaint and instructed that, if no first amended complaint was timely filed, the action would proceed on the original complaint. See id. at 7-8.
As of September 15, 2020, Plaintiff had not filed a first amended complaint and the Court issued findings and recommendations consistent with the July 29, 2020, order. See ECF No. 18. The findings and recommendations were adopted in fully by the assigned District Judge on March 5, 2021. See ECF No. 31.
After the Court issued the findings and recommendations on September 15, 2020, limiting Plaintiff's claims, but before the District Judge's March 5, 2021, order adopting the findings and recommendations, Defendants filed a motion to dismiss the original complaint. See ECF No. 25. On May 26, 2021, the Court issued findings and recommendations that Defendants' motion to dismiss be denied. See ECF No. 35. The Court also provided Plaintiff an additional opportunity to amend the original complaint to clarify certain allegations. See id. Plaintiff was again instructed that, if no first amended complaint was filed within the time provided, the action would proceed on the original complaint as limited by the District Judge's March 5, 2021, order. See id. The District Judge adopted the May 26, 2021, findings and recommendations in full on July 9, 2021, and referred the matter back to the undersigned for further pre-trial proceedings. See ECF No. 38.
In response to the Court's May 26, 2021, order allowing Plaintiff to file a first amended complaint to clarify certain allegations, Plaintiff filed the pleading currently before the Court. See ECF No. 36. To the extent Plaintiff intends this filing to be a stand-alone first amended complaint, it fails to state any allegations related to retaliation by Defendant Howard, nor does it contain allegations relating the specific involvement of Defendants Howard, Hontz, Frederick, Peterson, and Roth relative to Plaintiff's safety claim. Because the Court is unable to refer to a prior pleading to make Plaintiff's current pleading complete, see E. Dist. Cal. Local Rule 220, the Court will once again provide Plaintiff an opportunity to file a first amended complaint. If Plaintiff does not do so within the time provided, the case will proceed on Plaintiffs original complaint as limited by the District Judge. Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' request for screening, ECF No. 37, of Plaintiff s pleading at ECF No. 36 is construed as a motion and, so construed, is granted as explained herein; and
2. Plaintiff may file a first amended complaint within 30 days of the date of this order.