Opinion
1:22-cv-00976-SAB (PC)
09-26-2023
MICHAEL FOSTER, Plaintiff, v. KEN CLARK, et al., Defendants.
ORDER VACATING FINDINGS AND RECOMMENDATIONS AND DISMISSING CLAIMS AND DEFENDANT CLARK (ECF NOS. 53, 56, 58)
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. All parties have consented to United States Magistrate Judge jurisdiction. (ECF No. 42.)
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.)
On September 12, 2023, the Court inadvertently issued Findings and Recommendations recommending dismissal of all other claims and Defendants, except Defendant Ribeiro. (ECF No. 58.) As all the parties have consented to Magistrate Judge jurisdiction as the final arbitrator of this case, the assigned of a District Judge and issuance of Findings and Recommendations is not necessary.
Accordingly, it is HEREBY ORDERED that:
1. The Findings and Recommendations issued on September 12, 2023 are VACATED;
2. This action shall proceed against Defendant Ribeiro for failure to protect in violation of the Eighth Amendment; and
3. All other claims and Defendants are dismissed from the action for failure to state a cognizable claim for relief.
IT IS SO ORDERED.