(PC) Tran v. Smith ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BINH CUONG TRAN, Case No. 1:19-cv-00148-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 S. SMITH, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendants. CERTAIN CLAIMS AND DEFENDANTS 16 (ECF Nos. 10, 11) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Binh Cuong Tran is a state prisoner proceeding pro se in this civil rights action 20 pursuant to 42 U.S.C. § 1983. 21 On July 29, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff stated a 22 cognizable claim against Defendants Munsel and Jericoff for deliberate indifference in violation of 23 the Eighth Amendment, but failed to state any other cognizable claims against any other defendants. 24 (ECF No. 10.) The Court ordered Plaintiff to either file a first amended complaint or notify the 25 Court in writing of his willingness to proceed only on the cognizable claim. (Id.) 26 On August 7, 2019, Plaintiff notified the Court of his willingness to proceed only on the 27 cognizable claim identified by the Court. (ECF No. 11.) 28 Accordingly, the Court will recommend that this action proceed only against Defendants 1 | Munsel and Jericoff for deliberate indifference in violation of the Eighth Amendment, and that all 2 | other claims and defendants be dismissed. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 3 | 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 4 | 338, 341-42 (9th Cir. 2010). 5 Based on the foregoing, the Court HEREBY ORDERS the Clerk of the Court to randomly 6 | assign a Fresno District Judge to this action. 7 Further, it is HEREBY RECOMMENDED that: 8 1. This action proceed on Plaintiff's complaint, filed on February 4, 2019, (ECF No. 9 1), against Defendants Munsel and Jericoff for deliberate indifference in violation 10 of the Eighth Amendment; and 11 2. All other claims and defendants be dismissed from the action for failure to state a 12 cognizable claim for relief. 13 These Findings and Recommendations will be submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 15 | days after being served with these Findings and Recommendations, Plaintiff may file written 16 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 || specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 19 | onappeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 20 | F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. F- 2 ee 23 | Dated: _ August 9, 2019 UNITED STATES MAGISTRATE JUDGE 25 26 27 28