(PC) Williams v. Kelso ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD WILLIAMS, ) Case No.: 1:21-cv-00090-SAB (PC) ) 12 Plaintiff, ) ORDER DIRECTING CLERK OF COURT TO ) RANDOMLY ASSIGN A DISTRICT JUDGE TO 13 v. ) THIS ACTION 14 CLARK J. KELSO, et al., ) FINDINGS AND RECOMMENDATION ) RECOMMENDING DEFENDANT KELSO’S 15 Defendants. ) MOTION TO DISMISS BE DENIED, WITHOUT ) PREJUDICE, AS PREMATURE 16 ) ) (ECF No. 3) 17 ) 18 Plaintiff Richard Williams is proceeding pro se in this civil rights action pursuant to 42 U.S.C. 19 § 1983. This action was removed from the Kings County Superior Court by Defendant Kelso on 20 January 21, 2021. 21 On January 27, 2021, Defendant Kelso filed a motion to dismiss the complaint. (ECF No. 3.) 22 However, Defendant’s motion is premature. 23 Notwithstanding any filing fee, the court is required to screen complaints brought by prisoners 24 seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 §§ 1915A(a), 1915(e)(2). The screening obligation applies where a complaint is removed from state 26 court. See, e.g., Morris v. Horel, No. C 07-6060 SI (pr), 2008 WL 686874, *1 (N.D. Cal., March 12, 27 2008) (screening civil rights action removed from state court pursuant to Section 1915A). The Court 28 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 1 || or malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief 2 || from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Because the Court 3 || has not yet screened Plaintiff's complaint, Defendant’s motion to dismiss is premature. 4 Accordingly, it is HEREBY ORDERED that the Clerk of Court shall randomly assign a 5 || District Judge to this action. 6 Further, it is HEREBY RECOMMENDED that Defendant’s motion to dismiss, filed on 7 || January 27, 2021, be denied, without prejudice, as premature. 8 This Findings and Recommendation will be submitted to the United States District Judge 9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 10 || after being served with this Findings and Recommendation, the parties may file written objections 11 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 12 || Recommendation.” The parties are advised that failure to file objections within the specified time mz 13 || result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 14 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 ||IT IS SO ORDERED. A (Fe 17 |! Dated: _ January 28, 2021 OF 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28