Smith v. Martinez, et al.
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
EARL D. SMITH,
CASE NO. 1:17-cv-01092-MJS (PC)
MARTINEZ, et al.,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THIS ACTION
PROCEED ONLY ON COGNIZABLE
FIRST AMENDMENT CLAIM AND THAT
ALL OTHER CLAIMS AND DEFENDANTS
(ECF No. 13)
ORDER DIRECTING CLERK’S OFFICE
TO ASSIGN MATTER TO A DISTRICT
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.
On November 07, 2017, the Court screened Plaintiff’s first amended complaint
and found that it states a cognizable claim for damages against Defendant Martinez for
retaliation in violation of the First Amendment, but no other cognizable claims. (ECF No.
14.) Plaintiff was ordered to file an amended complaint or notify the Court in writing if he
wished to proceed only on the cognizable claims. (Id.) Plaintiff responded that he wishes
to proceed on his “original” complaint with the cognizable claim against Defendant
Martinez. (ECF No. 15.) The Court construes this as Plaintiff electing to proceed only on
the cognizable claim contained in the first amended complaint as described in the
Court’s screening order.
Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 10.). However,
no defendants have appeared or consented. Accordingly, the Clerk’s Office is HEREBY
DIRECTED to randomly assign this matter to a district judge pursuant to Local Rule
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only on the cognizable First Amendment claim for
damages against Defendant Martinez; and
2. All other claims and defendants be dismissed from this action for failure
to state a claim.
These findings and recommendations will be submitted to the United States
District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.
§ 636(b)(1). Within fourteen (14) days after being served with the findings and
recommendations, Plaintiff may file written objections with the Court. The document
should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”
Plaintiff is advised that failure to file objections within the specified time may result in the
waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
(citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
November 21, 2017
UNITED STATES MAGISTRATE JUDGE
Michael J. Seng
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