Cook

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL AARON WITKIN, No. 2:20-cv-2355 DJC SCR P Plaintiff, v. ORDER AND FINDINGS &

RECOMMENDATIONS

B. COOK, et al., Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Before the court is defendants’ motion to dismiss the action as malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). (ECF No. 61.) For the reasons described below, the undersigned recommends that defendants’ motion be denied. BACKGROUND I. Second Amended Complaint and Screening Plaintiff, a former prisoner at Deuel Vocational Institution, is proceeding on his second amended complaint (“SAC”) dated October 4, 2021. (ECF No. 20.) Plaintiff’s SAC alleges that on May 6, 2020, defendants Cook, Dobie, and Look overcharged him with a serious offense for speaking with another inmate on the facility’s first tier. (Id. at 3-5.) Plaintiff claims the…