Opinion
1:20-cv-00682-GSA-PC
09-22-2021
EDWARD B. SPENCER, Plaintiff, v. RICHARD MILAN, Defendant.
ORDER FOR CLERK TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS CASE
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY AGAINST DEFENDANT MILAN FOR ADVERSE CONDITIONS OF CONFINEMENT UNDER THE EIGHTH AMENDMENT, DISMISSING ALL OTHER CLAIMS AND DEFENDANTS, AND DISMISSING STATE CLAIMS WITHOUT PREJUDICE
OBJECTIONS, IF ANY, DUE IN 14 DAYS
GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On May 14, 2020, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) The Complaint names Richard Milan as the sole defendant and brings claims for adverse conditions of confinement under the Eighth Amendment, and negligence under state law.
The court screened the Complaint and found that it states a cognizable claim under the Eighth Amendment for adverse conditions of confinement against defendant Richard Milan, but no other claims against any defendant. (ECF No. 12.) On August 12, 2021, the court issued a screening order requiring Plaintiff to either: (1) file a First Amended Complaint, or (2) notify the court that he is willing to proceed only with the claims found cognizable by the court. (Id.)
On September 20, 2021, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 15.)
Accordingly, the Clerk is HEREBY ORDERED to randomly assign a district judge to this case; and
Based on the foregoing, it is HEREBY RECOMMENDED that:
1. This action proceed only on Plaintiff's claims against defendant Richard Milan for adverse conditions of confinement in violation of the Eighth Amendment;
2. All remaining claims and defendants be dismissed from this action;
3. Plaintiff's state law claims be dismissed from this action, without prejudice to bringing Plaintiff's state law claims in state court; and
4. This case be referred back to the Magistrate Judge for further proceedings, including initiation of service of process.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after the date of service of 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 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.