(PC) Smith v. Kim ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARRELL D. SMITH, 1:20-cv-00318-NONE-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS 13 vs. ACTION PROCEED ONLY AGAINST DEFENDANT RYAN KIM FOR 14 RYAN KIM, et al., PROVIDING INADEQUATE MEDICAL CARE IN VIOLATION OF THE EIGHTH 15 Defendants. AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE 16 DISMISSED 17 OBJECTIONS, IF ANY, DUE IN 14 DAYS 18 19 20 21 Anthony L. Robinson (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on March 2, 2020. (ECF No. 1.) The Complaint names as defendants 24 Ryan Kim (Physician’s Assistant) and Does #1, #2, and #3 (Health Care Providers). 25 On July 19, 2021, the court screened the Complaint and issued an order for Plaintiff to 26 either: (1) file an Amended Complaint, or (2) notify the court that he is willing to proceed only 27 with the medical claims against defendant Ryan Kim (Physician’s Assistant) found cognizable 28 by the court. (ECF No. 14.) 1 On August 13, 2021, Plaintiff notified the court that he is willing to proceed only with 2 the claims found cognizable by the court. (ECF No. 15.) 3 Based on the foregoing, it is HEREBY RECOMMENDED that: 4 1. This action proceed only on Plaintiff’s medical claims against defendant Ryan 5 Kim; 6 2. All remaining claims and defendants be dismissed from this action; 7 3. Plaintiff’s medical claims against defendants Does #1, #2, and #3, and claims for 8 attorney’s fees be dismissed from this action based on Plaintiff's failure to state 9 any claims upon which relief may be granted; 10 4. Plaintiff’s state law claims be dismissed from the action without prejudice to filing 11 in state court; 12 5. Defendants Does #1, #2, and #3 (Health Care Providers), be dismissed from this 13 action based on Plaintiff’s failure to state any claims against them upon which 14 relief may be granted; and 15 6. This case be referred back to the Magistrate Judge for further proceedings, 16 including initiation of service of process. 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 19 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 20 may file written objections with the Court. The document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 22 objections within the specified time may waive the right to appeal the District Court’s order. 23 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 IT IS SO ORDERED. 25 26 Dated: August 16, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28