(PC)Moya v. Chism ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RENE ANTHONY MOYA, ) Case No. 1:21-cv-01624-SAB (PC) ) 12 Plaintiff, ) ) ORDER DISCHARGING ORDER TO SHOW 13 v. ) CAUSE, DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO 14 B. CHISM, et al., ) THIS ACTION, AND FINDING AND ) RECOMMENDATIONS RECOMMENDING 15 Defendants. ) DISMISSAL OF CERTAIN DEFENDANTS ) 16 ) (ECF Nos. 7, 8) ) 17 ) 18 Plaintiff Rene Anthony Moya is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. 20 Plaintiff filed the instant action on November 8, 2021. 21 On December 15, 2021, the Court screened Plaintiff’s complaint, found that Plaintiff stated a 22 cognizable excessive force claim against Defendant VanNess and a cognizable failure to intervene 23 claim against Defendant Putnam. (ECF No. 6.) However, Plaintiff failed to state a cognizable claim 24 against Defendants Tolbert and Chism. (Id.) Plaintiff was granted thirty days to file an amended 25 complaint or notify the Court of his intent to proceed only on the claims found to be cognizable. (Id.) 26 After Plaintiff failed to respond to the Court’s December 15, 2021 order, an order to show cause 27 issued on January 25, 2022. (ECF No. 7.) 28 1 On February 9, 2022, Plaintiff filed a response to the Court’s order to show cause. (ECF No. 2 ||8.) In his response, Plaintiff indicates that on December 27, 2021, he sent a notice to the Court of his 3 || intent to proceed only on the claims found to be cognizable. (Id.) In support of his contention, 4 || Plaintiff attaches a mail log which reflects outgoing legal mail addressed to the United States District 5 || Court for the Eastern District of California on December 27, 2021. (Id.) Accordingly, although the 6 || Court did not receive Plaintiff's correspondence dated December 27, 2021, based on Plaintiff's 7 || representation and supporting evidence, the Court finds good cause to discharge the order to show 8 || cause and will recommend this action proceed on the claims found to be cognizable. 9 Based on the foregoing, it is HEREBY ORDERED that: 10 1. The Court’s January 25, 2022 (ECF No. 7) order to show cause is discharged; and 11 2. The Clerk of Court shall randomly assign a district judge to this action. 12 Further, it is HEREBY RECOMMENDED that: 13 1. This action proceed on Plaintiff's excessive force claim against Defendant VanNess 14 and failure to intervene claim against Defendant Putnam; and 15 2. All other claims and Defendants be dismissed for failure to state a cognizable claim. 16 These Findings and Recommendations will be submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days 18 || after being served with these Findings and Recommendations, Plaintiff may file written objections 19 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 20 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 21 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 22 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. A (re 25 pated: _ February 10, 2022 OF 26 UNITED STATES MAGISTRATE JUDGE 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28