Harris v. Sexton, et al.

Filing 100

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/17/23 ADOPTING in full 90 Findings and Recommendations and GRANTING IN PART AND DENYING IN PART 66 plaintiff's Motion to Amend the Complaint (see order for further details). D efendant's 87 motion to strike the amended complaint filed 12/27/21 is GRANTED. Defendant Sexton is DISMISSED from this action. This matter is REFERRED back to the assigned magistrate judge for all further pretrial proceedings. (Kastilahn, A)

Case 1:18-cv-00080-KJM-DB Document 100 Filed 01/17/23 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARNEST S. HARRIS,

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Plaintiff,

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v.

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SEXTON, et al.,

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No. 1:18-cv-0080 KJM DB P

ORDER

Defendant.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided

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by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 31, 2022, the magistrate judge filed findings and recommendations, which were

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served on plaintiff and which contained notice to plaintiff that any objections to the findings and

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recommendations were to be filed within thirty days. Plaintiff has filed objections to the findings

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and recommendations.

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On August 9, 2022, the court issued an order requiring counsel for defendants to file

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within fourteen days a statement explaining what, if any, impact the settlement reached in the

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complaint-in-intervention filed by plaintiff Christopher Lipsey in Coleman v. Newsom, Case No.

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90-cv-0520 KJM DB P, has on this action. Aug. 9, 2022 Order, ECF No. 98. On August 22,

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2022, defendants timely filed a response representing they do not believe the Lipsey settlement

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impacts this action. ECF No. 99.
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Case 1:18-cv-00080-KJM-DB Document 100 Filed 01/17/23 Page 2 of 2
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having reviewed the file, including

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defendants’ August 2022 filing, the court finds the findings and recommendations to be supported

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by the record and by the proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 31, 2022, are adopted in full.

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2. Plaintiff’s February 18, 2021 motion to amend the second amended complaint (“SAC”)

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(ECF No. 66) is granted in part and denied in part as follows:

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a. Plaintiff’s motion to supplement his SAC with an Eighth Amendment claim and
a First Amendment claim against defendant Flores is granted; and

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b. Plaintiff’s motion to supplement or amend the SAC is denied with respect to the

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addition of claims that Guard One is being used inappropriately on non-Coleman class

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members, that defendant Flores violated plaintiff’s rights under the PREA, and that CDCR

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violated an order in Coleman v. Newsom by allowing psychiatric technicians, rather than

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custody staff, to conduct the Guard One checks.

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3. Defendant’s motion to strike (ECF No. 87) the amended complaint filed December 27,

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2021 is granted.

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4. Defendant Sexton is dismissed from this action.

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5. This matter is referred back to the assigned magistrate judge for all further pretrial

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proceedings.

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DATED: January 17, 2023.

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