Opinion
1:22-cv-00976-SAB (PC)
09-12-2023
MICHAEL FOSTER, Plaintiff, v. KEN CLARK, et al.,, Defendants.
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF DEFENDANT WARDEN CLARK (ECF NOS. 53, 56)
Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action on August 1, 2022.
On September 2, 2022, the Court screened Plaintiff's complaint, found he failed to state any cognizable claims, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 12.)
Plaintiff filed a first amended complaint on September 20, 2022. (ECF No. 13.)
On September 30, 2022, the Court found that Plaintiff stated a cognizable claim against Defendant Romero for failure to protect in violation of the Eighth Amendment and ordered that the complaint be electronically served. (ECF No. 14.)
Defendant Romero filed an answer to the complaint on March 27, 2023. (ECF No. 24.)
On April 28, 2023, the Court issued the discovery and scheduling order, setting the deadline of July 28, 2023 to amend the pleadings.
On July 10, 2023, Plaintiff filed a motion for an extension of time to amend the complaint, which the Court construed as a motion to amend the complaint under Federal Rule of Civil Procedure 15. (ECF No. 46.) Plaintiff submitted an amended complaint on July 24, 2023, which was lodged by the Court. (ECF No. 47.)
On August 2, 2023, Defendant Romero filed a statement of non-opposition to Plaintiff's motion to amend. (ECF No. 50.)
On August 4, 2023, the Court granted Plaintiff's motion to amend the complaint and directed the Clerk of Court to file the second amended complaint. (ECF No. 51.)
On August 29, 2023, the Court screened Plaintiff's second complaint, and found that he stated cognizable failure to protect claim against only Defendant Ribeiro. (ECF No. 52.) The Court also noted that Plaintiff voluntarily terminated Defendant Romero from the second amended complaint. (ECF Nos. 52, 53.) Although Plaintiff again named Warden Ken Clark, he failed to state a cognizable claim against him and Plaintiff was granted the opportunity to file a third amended complaint or notify the Court of his intent to proceed on the claim against Defendant Ribeiro. (Id.)
On September 11, 2023, Plaintiff filed a notice of intent to proceed on the claim against Defendant Ribeiro and dismiss all other claims and Defendants. (ECF No. 56.)
Accordingly, it is HEREBY ORDERED that the Clerk of the Court shall assign a District Judge to this action.
Further, it is HEREBY RECOMMENDED that:
1. This action proceed against Defendant Ribeiro for failure to protect in violation of the Eighth Amendment; and
2. All other claims and Defendants be dismissed from the action for failure to state a cognizable claim for relief.
By way of separate order, the Court has directed electronic service of the second amended complaint on Defendant Ribeiro.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.