(PC) Foster v. Clark ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MICHAEL FOSTER, No. 1:22-cv-00976-SAB (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 11 v. TO THIS ACTION 12 KEN CLARK, et al.,, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 Defendants. DEFENDANT WARDEN CLARK 14 (ECF Nos. 53, 56) 15 16 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant 17 to 42 U.S.C. § 1983. 18 Plaintiff filed the instant action on August 1, 2022. 19 On September 2, 2022, the Court screened Plaintiff’s complaint, found he failed to state 20 any cognizable claims, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 21 12.) 22 Plaintiff filed a first amended complaint on September 20, 2022. (ECF No. 13.) 23 On September 30, 2022, the Court found that Plaintiff stated a cognizable claim against 24 Defendant Romero for failure to protect in violation of the Eighth Amendment and ordered that 25 the complaint be electronically served. (ECF No. 14.) 26 Defendant Romero filed an answer to the complaint on March 27, 2023. (ECF No. 24.) 27 On April 28, 2023, the Court issued the discovery and scheduling order, setting the 28 deadline of July 28, 2023 to amend the pleadings. 1 On July 10, 2023, Plaintiff filed a motion for an extension of time to amend the complaint, 2 which the Court construed as a motion to amend the complaint under Federal Rule of Civil 3 Procedure 15. (ECF No. 46.) Plaintiff submitted an amended complaint on July 24, 2023, which 4 was lodged by the Court. (ECF No. 47.) 5 On August 2, 2023, Defendant Romero filed a statement of non-opposition to Plaintiff’s 6 motion to amend. (ECF No. 50.) 7 On August 4, 2023, the Court granted Plaintiff’s motion to amend the complaint and 8 directed the Clerk of Court to file the second amended complaint. (ECF No. 51.) 9 On August 29, 2023, the Court screened Plaintiff’s second complaint, and found that he 10 stated cognizable failure to protect claim against only Defendant Ribeiro. (ECF No. 52.) The Court 11 also noted that Plaintiff voluntarily terminated Defendant Romero from the second amended 12 complaint. (ECF Nos. 52, 53.) Although Plaintiff again named Warden Ken Clark, he failed to 13 state a cognizable claim against him and Plaintiff was granted the opportunity to file a third 14 amended complaint or notify the Court of his intent to proceed on the claim against Defendant 15 Ribeiro. (Id.) 16 On September 11, 2023, Plaintiff filed a notice of intent to proceed on the claim against 17 Defendant Ribeiro and dismiss all other claims and Defendants. (ECF No. 56.) 18 Accordingly, it is HEREBY ORDERED that the Clerk of the Court shall assign a District 19 Judge to this action. 20 Further, it is HEREBY RECOMMENDED that: 21 1. This action proceed against Defendant Ribeiro for failure to protect in violation of 22 the Eighth Amendment; and 23 2. All other claims and Defendants be dismissed from the action for failure to state a 24 cognizable claim for relief.1 25 These Findings and Recommendations will be submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten (10) days after 27 1 By way of separate order, the Court has directed electronic service of the second amended complaint on Defendant 28 Ribeiro. 1 | being served with these Findings and Recommendations, Plaintiff may file written objections with 2 | the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 3 | Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 4 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 5 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 IT IS SO ORDERED. DAA (e_ g | Dated: _September 12, 2023 _ OE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28