(PC) Rood v. Secretary

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 COLTON JAMES ROOD, No. 1:22-cv-00449-NODJ-SAB (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATION 13 v. (ECF No. 51) 14 SECRETARY OF CDCR, et al., FINDINGS AND RECOMMENDATION 15 Defendants. RECOMMENDING DISMISSAL OF CLAIMS AND DEFENDANTS 16 (ECF No. 49) 17

19 Plaintiff Colton James Rood is proceeding pro se and in forma pauperis in this civil rights 20 action filed pursuant to 42 U.S.C. § 1983. 21 On February 13, 2024, the Court issued one last order to show cause why the action 22 should not be dismissed. (ECF No. 48.) Plaintiff failed to respond to order to show cause within 23 the time frame. Accordingly, on March 4, 2024, Findings and Recommendations were issued to 24 dismiss the action based on Plaintiff’s failure to comply a court order and failure to prosecute. 25 (ECF No. 51.) On this same date, Plaintiff filed a response to the Court’s February 13, 2024, 26 order to show cause. (ECF No. 49.) In his response, Plaintiff states the he did not receive the 27 Court’s February 13, 2024 order until February 27, 2024, and he wishes to proceed only on his 28 1 || deliberate indifference and retaliation claims against Defendant Carrillo. id.) Inasmuch as 2 | Plaintiff has filed a response to the latest order to show cause (albeit untimely) and expressed his 3 | willingness to proceed on one of the claims found to be cognizable, the Court will vacate the 4 || Findings and Recommendations recommending dismissal of the action. 5 Based on the foregoing, it is HEREBY ORDERED that: 6 1. The Findings and Recommendations issued on March 4, 2024 (ECF No. 51) are 7 VACATED; 8 2. The instant action proceed against Defendant Carrillo for deliberate indifference 9 and retaliation as stated in the February 1, 2023 screening order; and 10 3. All other claims and Defendants be dismissed from the action, without prejudice. 11 These Findings and Recommendations will be submitted to the United States District 12 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 13 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written 14 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 15 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 16 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 17 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 IT IS SO ORDERED. F- 2 ee 20 | Dated: _March 5, 2024 _ OO UNITED STATES MAGISTRATE JUDGE

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