Shufelt v. Miranda et al

Filing 35

ORDER signed by Senior Judge William B. Shubb on 2/6/19 REMANDING this action to the magistrate judge for proceedings consistent with this order. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE W. SHUFELT,

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No. 2:17-cv-1014 WBS CKD P

Plaintiff,
v.

ORDER

RAFAEL MIRANDA, et al.,
Defendants.

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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 pursuant to

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

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On December 19, 2018, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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In an order issued April 19, 2018, the magistrate judge screened plaintiff’s amended
complaint and found that the amended complaint states claims upon which plaintiff may proceed
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under the Eighth Amendment against defendants Griffith, Miranda and Abdur-Rahman for denial

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or delay of medical treatment. Plaintiff objected to the court’s screening order asserting, in part,

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that he should be permitted to proceed on claims arising under California law as well. In

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response to the objections, the magistrate judge dismissed plaintiff’s amended complaint with

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leave to file a second amended complaint. Plaintiff did not file a second amended complaint

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within the allotted time and the magistrate judge now recommends dismissal of this action.

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Since the magistrate judge found that plaintiff’s amended complaint states actionable

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claims, the court will decline the recommendation that this action be dismissed for failure to file a

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second amended complaint. This action will be remanded to the magistrate judge who should

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determine if plaintiff wishes to proceed on his amended complaint pursuant to the terms described

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in the magistrate judge’s April 19, 2018 order.

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Accordingly, IT IS HEREBY ORDERED that this action is remanded to the assigned

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magistrate judge for proceedings consistent with this order.

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Dated: February 6, 2019

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shuf1014.jo

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