(PC) Howell v. Burns ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, Case No. 1:19-cv-00715-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 MR. J. BURNES, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 15 Defendants. CERTAIN CLAIMS AND DEFENDANTS 16 (ECF Nos. 9, 10) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Kareem J. Howell is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. 21 On October 8, 2019, the Court screened Plaintiff’s complaint and found that Plaintiff 22 stated cognizable claims against Defendants Burnes, Babb, Tumacder, and Sexton for deliberate 23 indifference in violation of the Eighth Amendment, retaliation in violation of the First 24 Amendment, and conspiracy; against Defendant Sanchez for deliberate indifference in violation 25 of the Eighth Amendment; and against Defendant Padrnos for retaliation in violation of the First 26 Amendment, but failed to state any other cognizable claims against any other defendants. (ECF 27 No. 9.) The Court ordered Plaintiff to either file a first amended complaint or notify the Court in 28 writing of his willingness to proceed only on the cognizable claims. (Id.) 1 On October 24, 2019, Plaintiff notified the Court of his willingness to proceed only on the 2 cognizable claims identified by the Court on October 8, 2019. (ECF No. 10.) 3 Accordingly, the Court will recommend that this action proceed only against Defendants 4 Burnes, Babb, Tumacder, and Sexton for deliberate indifference in violation of the Eighth 5 Amendment, retaliation in violation of the First Amendment, and conspiracy; against Defendant 6 Sanchez for deliberate indifference in violation of the Eighth Amendment; against Defendant 7 Padrnos for retaliation in violation of the First Amendment, and that all other claims and 8 defendants be dismissed. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell 9 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th 10 Cir. 2010). 11 Based on the foregoing, the Court HEREBY ORDERS the Clerk of the Court to randomly 12 assign a Fresno District Judge to this action. 13 Further, it is HEREBY RECOMMENDED that: 14 1. This action proceed on Plaintiff’s complaint, filed on May 22, 2019, (ECF No. 1), 15 against Defendants Burnes, Babb, Tumacder, and Sexton for deliberate 16 indifference in violation of the Eighth Amendment, retaliation in violation of the 17 First Amendment, and conspiracy; against Defendant Sanchez for deliberate 18 indifference in violation of the Eighth Amendment; and against Defendant Padrnos 19 for retaliation in violation of the First Amendment; and 20 2. All other claims and defendants be dismissed from the action for failure to state a 21 cognizable claim for relief. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 These Findings and Recommendations will be submitted to the United States District 2 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 3 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written 4 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 | specified time may result in the waiver of the “right to challenge the magistrate’s factual 7 | findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. EF □□ (Se 12 | Dated: _ October 25, 2019 _ Oe 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28