(PC) Spencer v. Milan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, 1:20-cv-00682-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS CASE 13 vs. FINDINGS AND RECOMMENDATIONS, 14 RICHARD MILAN, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT 15 Defendant. MILAN FOR ADVERSE CONDITIONS OF CONFINEMENT UNDER THE EIGHTH 16 AMENDMENT, DISMISSING ALL OTHER CLAIMS AND DEFENDANTS, AND 17 DISMISSING STATE CLAIMS WITHOUT PREJUDICE 18 19 OBJECTIONS, IF ANY, DUE IN 14 DAYS 20 21 22 Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma 23 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On May 14, 2020, Plaintiff 24 filed the Complaint commencing this action. (ECF No. 1.) The Complaint names Richard Milan 25 as the sole defendant and brings claims for adverse conditions of confinement under the Eighth 26 Amendment, and negligence under state law. 27 The court screened the Complaint and found that it states a cognizable claim under the 28 Eighth Amendment for adverse conditions of confinement against defendant Richard Milan, but 1 no other claims against any defendant. (ECF No. 12.) On August 12, 2021, the court issued a 2 screening order requiring Plaintiff to either: (1) file a First Amended Complaint, or (2) notify the 3 court that he is willing to proceed only with the claims found cognizable by the court. (Id.) 4 On September 20, 2021, Plaintiff notified the court that he is willing to proceed only with 5 the claims found cognizable by the court. (ECF No. 15.) 6 Accordingly, the Clerk is HEREBY ORDERED to randomly assign a district judge to 7 this case; and 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. This action proceed only on Plaintiff’s claims against defendant Richard Milan 10 for adverse conditions of confinement in violation of the Eighth Amendment; 11 2. All remaining claims and defendants be dismissed from this action; 12 3. Plaintiff’s state law claims be dismissed from this action, without prejudice to 13 bringing Plaintiff’s state law claims in state court; and 14 4. This case be referred back to the Magistrate Judge for further proceedings, 15 including initiation of service of process. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 18 fourteen (14) days after the date of service of these Findings and Recommendations, Plaintiff 19 may file written objections with the Court. The document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 objections within the specified time may waive the right to appeal the District Court’s order. 22 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 25 Dated: September 22, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28