(PC) Hammler v. Haas, et al., No. 2:2015cv02266 - Document 40 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 03/28/18 ORDERING plaintiffs motion to expedite trial 38 is DENIED. The undersigned's dismissal of defendants Brown and Hudson, and plaintiffs claims premised on alleged racial discrimination, see 17 , is VACATED. The Clerk of Court is directed to randomly assign a district judge to this action. Also, RECOMMENDING that for the reasons set forth in the undersigned's March 8, 2017 screening order, s ee 17 at 3-7, 10, that: defendants Brown and Hudson be dismissed from this action without leave to amend; and The first and second causes of action of the operative First Amended Complaint, 12 , which challenge plaintiffs cell assignments based on alleged racial discrimination, be dismissed from this action without leave to amend. Assigned and referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M) Modified on 3/29/2018 (Plummer, M).
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(PC) Hammler v. Haas, et al. Doc. 40 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 12 Plaintiff, 13 14 No. 2:15-cv-2266 AC P v. ORDER AND FINDINGS AND RECOMMENDATIONS HAAS, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se with his First Amended civil rights 17 18 complaint against defendants Haas and Louie on failure-to-protect claims under the Eighth 19 Amendment. See ECF Nos. 12, 17. By order filed August 11, 2017, the discovery deadline 20 expired on December 15, 2017, and dispositive motions are due April 13, 2018. See ECF No. 33. 21 Presently pending is plaintiff’s “motion to expedite trial” on the ground that plaintiff is now fully 22 prepared to so proceed. See ECF No. 38. Defendant Haas has filed an opposition. See ECF 23 No. 39. Trials in prisoner cases are routinely scheduled after resolution of the parties’ dispositive 24 25 motions or, if no dispositive motion is filed, the expiration of the date for filing such motions. 26 This sequence allows for the resolution of legal issues on the papers, and narrows the remaining 27 factual and legal issues for trial. Only if no party files a dispositive motion will this case be set 28 //// 1 Dockets.Justia.com 1 for trial. Accordingly, plaintiff’s motion to expedite trial prior to expiration of the dispositive 2 motion deadline must be denied.1 3 Additionally, in light of the Ninth Circuit’s recent decision in Williams v. King, 875 F.3d 4 500 (9th Cir. 2017) (no magistrate judge jurisdiction based on plaintiff’s consent alone), this court 5 will vacate the undersigned’s dismissal from this action of defendants Brown and Hudson, and 6 plaintiff’s first and second causes of action challenging his cell assignments based on alleged 7 racial discrimination. See ECF No. 17. However, for the reasons set forth in the undersigned’s 8 March 8, 2017 screening order pursuant to 28 U.S.C. § 1915A, see ECF No. 17, the undersigned 9 will recommend to the assigned district judge the dismissal of these defendants and claims 10 without leave to amend. 11 For the foregoing reasons, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion to expedite trial, ECF No. 38, is denied; 13 2. The undersigned’s dismissal of defendants Brown and Hudson, and plaintiff’s claims 14 premised on alleged racial discrimination, see ECF No. 17, is vacated; and 15 3. The Clerk of Court is directed to randomly assign a district judge to this action. 16 Further, IT IS HEREBY RECOMMENDED, for the reasons set forth in the undersigned’s 17 March 8, 2017 screening order, see ECF No. 17 at 3-7, 10, that: 18 19 1. Defendants Brown and Hudson be dismissed from this action without leave to amend; and 20 2. The first and second causes of action of the operative First Amended Complaint, ECF 21 No. 12, which challenge plaintiff’s cell assignments based on alleged racial discrimination, be 22 dismissed from this action without leave to amend. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 25 1 26 27 28 To the extent that plaintiff may be seeking to pursue an expedited trial under the procedures set forth in the court’s notice served August 11, 2017, see ECF No. 33-1, application of the procedures requires the consent of all parties to the jurisdiction of the assigned magistrate judge pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and Local Rule 305. In the present case, to date, only plaintiff has consented to the jurisdiction of the undersigned magistrate judge. See ECF No. 5. 2 1 days after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 4 failure to file objections within the specified time may waive the right to appeal the District 5 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 DATED: March 28, 2018. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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