(PC) Smith v. Martinez, et al., No. 1:2017cv01092 - Document 16 (E.D. Cal. 2017)

Court Description: 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)

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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

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