Smith v. Martinez, et al.

Filing 16

FINDINGS and RECOMMENDATIONS recommending that this action proceed only on the cognizable First Amendment Claim for Damages against Defendant Martinez; All other claims and Defendants be Dismissed from this action for failure to state a claim re 13 Amended Prisoner Civil Rights Complaint filed by Earl D. Smith ; new case number is 1:17-cv-1092 AWI-MJS (PC); referred to Judge Ishii,signed by Magistrate Judge Michael J. Seng on 11/21/17. Objections to F&R due 14-Day Deadline (Martin-Gill, S)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

EARL D. SMITH,

CASE NO. 1:17-cv-01092-MJS (PC)

9
Plaintiff,

10
11

v.

12
13
14

MARTINEZ, et al.,
Defendants.

15

18

FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THIS ACTION
PROCEED ONLY ON COGNIZABLE
FIRST AMENDMENT CLAIM AND THAT
ALL OTHER CLAIMS AND DEFENDANTS
BE DISMISSED
(ECF No. 13)

16
17

ORDER DIRECTING CLERK’S OFFICE
TO ASSIGN MATTER TO A DISTRICT
JUDGE

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.

19

On November 07, 2017, the Court screened Plaintiff’s first amended complaint

20

and found that it states a cognizable claim for damages against Defendant Martinez for

21

retaliation in violation of the First Amendment, but no other cognizable claims. (ECF No.

22

14.) Plaintiff was ordered to file an amended complaint or notify the Court in writing if he

23

wished to proceed only on the cognizable claims. (Id.) Plaintiff responded that he wishes

24

to proceed on his “original” complaint with the cognizable claim against Defendant

25

Martinez. (ECF No. 15.) The Court construes this as Plaintiff electing to proceed only on

26

the cognizable claim contained in the first amended complaint as described in the

27

Court’s screening order.

28

1

Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 10.). However,

2

no defendants have appeared or consented. Accordingly, the Clerk’s Office is HEREBY

3

DIRECTED to randomly assign this matter to a district judge pursuant to Local Rule

4

120(e).

5

Based on the foregoing, it is HEREBY RECOMMENDED that:

6

1. This action proceed only on the cognizable First Amendment claim for

7

damages against Defendant Martinez; and

8

2. All other claims and defendants be dismissed from this action for failure

9

to state a claim.

10

These findings and recommendations will be submitted to the United States

11

District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.

12

§ 636(b)(1). Within fourteen (14) days after being served with the findings and

13

recommendations, Plaintiff may file written objections with the Court. The document

14

should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

15

Plaintiff is advised that failure to file objections within the specified time may result in the

16

waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)

17

(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

18
19
20

IT IS SO ORDERED.
Dated:

November 21, 2017

/s/

21

UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28

Michael J. Seng

2