(PC) Martinez v. Mundy et al, No. 2:2021cv01872 - Document 32 (E.D. Cal. 2023)

Court Description: ORDER signed by District Judge Dale A. Drozd on 7/25/23 ADOPTING in full 21 Findings and Recommendations. This action shall proceed only on plaintiff's Eighth Amendment deliberate indifference claim against defendant Mundy. Plaintiff' ;s claims against defendants Moss and Pickett are DISMISSED due to plaintiff's failure to state a cognizable claim. Defendants Moss and Pickett are DISMISSED from this action. This action is REFERRED back to the assigned magistrate judge for further proceedings. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BENJAMIN MARTINEZ, 12 Plaintiff, 13 14 No. 2:21-cv-01872-DAD-DMC (PC) v. L. MUNDY, et al., 15 Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS (Doc. No. 21) 16 17 Plaintiff Benjamin Martinez is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On April 12, 2023, the assigned magistrate judge issued findings and recommendations 20 21 recommending that this action proceed only on plaintiff’s “Eighth Amendment claim against 22 defendant Mundy based on [defendant Mundy’s] alleged disregard for plaintiff’s health by 23 serving contaminated food,” as stated in plaintiff’s operative first amended complaint (“FAC”), 24 because that is the only claim the magistrate judge found to be cognizable. (Doc. No. 21 at 2.) 25 The magistrate judge also recommends that the only other defendants, defendants Moss and 26 Pickett, be dismissed from this action due to plaintiff’s failure to state a cognizable claim against 27 them. (Id. at 4–5.) The pending findings and recommendations were served on plaintiff and 28 ///// 1 1 contained notice that any objections thereto were to be filed within fourteen (14) days after 2 service. (Id. at 5.) No objections to those findings and recommendations have been filed, and the 3 time in which to do so has now passed. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 5 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 6 findings and recommendations are supported by the record and proper analysis. 7 Accordingly, 8 1. 9 The findings and recommendations issued on April 12, 2023 (Doc. No. 21) are adopted in full; 10 2. 11 This action shall proceed only on plaintiff’s Eighth Amendment deliberate indifference claim against defendant Mundy; 12 3. Plaintiff’s claims against defendants Moss and Pickett are dismissed due to plaintiff’s failure to state a cognizable claim; 13 14 4. Defendants Moss and Pickett are dismissed from this action; 15 5. The Clerk of the Court is directed to update the docket to reflect the termination of 16 defendants Moss and Pickett; and 17 6. 18 proceedings. 19 20 This action is referred back to the assigned magistrate judge for further IT IS SO ORDERED. Dated: July 25, 2023 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2

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