(PC) Tate v. Nakashyan

Opinion

DEREK TATE, Case No.: 1:22-cv-00624 SKO (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS TO v. DISMISS CERTAIN CLAIMS

DIANA NAKASHYAN, et al., 14-DAY OBJECTION DEADLINE

Defendants. Clerk of the Court to Assign District Judge Plaintiff Derek Tate is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. On March 28, 2023, this Court issued its First Screening Order. (Doc. 17.) The Court found Plaintiff’s complaint stated the following cognizable claims: First Amendment retaliation claims against Defendants Nakashyan and Custer, a Fourteenth Amendment substantive due process claim against Defendant Custer, and a Fifth Amendment Equal Protection claim against Defendant Nakashyan. (Id. at 6-10.) The Court further found Plaintiff’s complaint failed to state any other cognizable claim against any other defendant. (Id. at 10.) Plaintiff was given 21 days to elect one of the following options: (1) file a first amended complaint curing the deficiencies 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.) On April 12, 2023, Plaintiff filed a reply to the Court’s screening order, electing “to proceed only on his First Amendment retaliation claims; Fourteenth Amendment due process claim; Fifth Amendment Equal Protection claim.” (Doc. 18.) Plaintiff states he “does not wish to amend his complaint, and will proceed only on those cognizable claims found in his initial complaint.” (Id.) Accordingly, the Clerk of the Court is directed to randomly assign a district judge to this action. For the reasons set forth in the Court’s First Screening Order (Doc. 17), the Court RECOMMENDS as follows: 1. That this action proceed only on Plaintiff’s First Amendment retaliation claims against Defendants Nakashyan and Custer, Fourteenth Amendment substantive due process claim against Defendant Custer, and Fifth Amendment Equal Protection claim against Defendant Nakashyan; and 2. That the remaining claims in Plaintiff’s complaint filed May 13, 2022 (Doc. 1) be These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and Recommendations, a party may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the specified time may result in waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.

Dated: April 18, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE