(PC) Powell v. Lynch et al, No. 2:2023cv02275 - Document 12 (E.D. Cal. 2023)
Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 12/21/2023 VACATING the 10 findings and recommendations filed 11/30/2023, and DISMISSING plaintiff's claims in the complaint against defendants Lynch and Doe 4 based solely on their supervisory status and all claims against defendants Andes and O'Brien.(Yin, K)
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(PC) Powell v. Lynch et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ADAM RANDOLPH POWELL, 12 13 14 15 No. 2:23-cv-2275 DAD KJN P Plaintiff, v. ORDER JEFF LYNCH, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. For the reasons stated herein, the findings and recommendations filed 19 November 30, 2023 are vacated. 20 On October 18, 2023, the undersigned issued an order screening plaintiff’s complaint. 21 (ECF No. 7.) The undersigned found that plaintiff’s complaint stated potentially colorable claims 22 against defendants Lynch and Does 1-4 based on their alleged failure to repair the ventilation in 23 plaintiff’s cell. (Id.) The undersigned found that plaintiff’s claims against defendants Lynch and 24 Doe 4 based solely on their supervisory status and all claims against defendants Andes and 25 O’Brien were not potentially colorable. (Id.) 26 In the October 18, 2023 order, the undersigned granted plaintiff thirty days to file an 27 amended complaint or return the form indicating that he opted to proceed on the complaint as to 28 the potentially colorable claims against defendants Lynch and Does 1-4. (Id.) Thirty days passed 1 Dockets.Justia.com 1 from October 18, 2023, and plaintiff did not file an amended complaint or the notice indicating 2 that he opted to proceed on the potentially colorable claims against defendants Lynch and Does 1- 3 4. Accordingly, on November 30, 2023, the undersigned recommended dismissal of this action. 4 (ECF No. 10.) 5 On December 18, 2023, plaintiff filed objections to the November 30, 2023 findings and 6 recommendations. (ECF No. 11.) In the objections, plaintiff states that he thought that he 7 responded to the October 18, 2023 order. (Id. at 1.) Plaintiff states that he wishes to proceed with 8 the potentially colorable claims against defendants Lynch and Does 1-4. (Id.) 9 Good cause appearing, the November 30, 2023 findings and recommendations are 10 vacated. Based on plaintiff’s statements in his objections, the undersigned separately orders 11 service of defendant Lynch as to the potentially colorable claims. If the true identity of 12 defendants Does 1-4 is discovered, plaintiff may move to amend his complaint to identify these 13 defendants. The undersigned also construes plaintiff’s objections to include a request for the 14 voluntary dismissal of those claims found not potentially colorable in the October 18, 2023 order. 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. The findings and recommendations filed November 30, 2023 (ECF No. 10) are 17 vacated; and 18 2. Plaintiff’s claims in the complaint against defendants Lynch and Doe 4 based solely 19 on their supervisory status and all claims against defendants Andes and O’Brien are 20 dismissed. Fed. R. Civ. P. 41(a). 21 Dated: December 21, 2023 22 23 24 25 26 Pow2275.vac 27 28 2
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