(PC) Tate v. Nakashyan ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DEREK TATE, Case No.: 1:22-cv-00624 SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS CERTAIN CLAIMS 14 DIANA NAKASHYAN, et al., 14-DAY OBJECTION DEADLINE 15 Defendants. Clerk of the Court to Assign District Judge 16 17 Plaintiff Derek Tate is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On March 28, 2023, this Court issued its First Screening Order. (Doc. 17.) The Court 21 found Plaintiff’s complaint stated the following cognizable claims: First Amendment retaliation 22 claims against Defendants Nakashyan and Custer, a Fourteenth Amendment substantive due 23 process claim against Defendant Custer, and a Fifth Amendment Equal Protection claim against 24 Defendant Nakashyan. (Id. at 6-10.) The Court further found Plaintiff’s complaint failed to state 25 any other cognizable claim against any other defendant. (Id. at 10.) Plaintiff was given 21 days to 26 elect one of the following options: (1) file a first amended complaint curing the deficiencies 27 identified in the order; (2) notify the Court of his willingness to proceed only on the claims found cognizable by the Court; or (3) file a notice of voluntary dismissal. (Id. at 11.) 1 On April 12, 2023, Plaintiff filed a reply to the Court’s screening order, electing “to 2 proceed only on his First Amendment retaliation claims; Fourteenth Amendment due process 3 claim; Fifth Amendment Equal Protection claim.” (Doc. 18.) Plaintiff states he “does not wish to 4 amend his complaint, and will proceed only on those cognizable claims found in his initial 5 complaint.” (Id.) 6 II. FINDINGS AND RECOMMENDATIONS 7 Accordingly, the Clerk of the Court is directed to randomly assign a district judge to this 8 action. For the reasons set forth in the Court’s First Screening Order (Doc. 17), the Court 9 RECOMMENDS as follows: 10 1. That this action proceed only on Plaintiff’s First Amendment retaliation claims against 11 Defendants Nakashyan and Custer, Fourteenth Amendment substantive due process 12 claim against Defendant Custer, and Fifth Amendment Equal Protection claim against 13 Defendant Nakashyan; and 14 2. That the remaining claims in Plaintiff’s complaint filed May 13, 2022 (Doc. 1) be 15 DISMISSED. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 18 service of these Findings and Recommendations, a party may file written objections with the 19 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 20 Recommendations.” Failure to file objections within the specified time may result in waiver of 21 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 22 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: April 18, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26 27