(PC) Smith v. Kim

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

DARRELL D. SMITH, 1:20-cv-00318-NONE-GSA-PC

Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS vs. ACTION PROCEED ONLY AGAINST

DEFENDANT RYAN KIM FOR

RYAN KIM, et al., PROVIDING INADEQUATE MEDICAL CARE IN VIOLATION OF THE EIGHTH Defendants. AMENDMENT, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE

DISMISSED

OBJECTIONS, IF ANY, DUE IN 14 DAYS

Anthony L. Robinson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on March 2, 2020. (ECF No. 1.) The Complaint names as defendants Ryan Kim (Physician’s Assistant) and Does #1, #2, and #3 (Health Care Providers).

On July 19, 2021, the court screened the Complaint and issued an order for Plaintiff to either: (1) file an Amended Complaint, or (2) notify the court that he is willing to proceed only with the medical claims against defendant Ryan Kim (Physician’s Assistant) found cognizable by the court. (ECF No. 14.)

On August 13, 2021, Plaintiff notified the court that he is willing to proceed only with the claims found cognizable by the court. (ECF No. 15.)

Based on the foregoing, it is HEREBY RECOMMENDED that:

1. This action proceed only on Plaintiff’s medical claims against defendant Ryan Kim;

2. All remaining claims and defendants be dismissed from this action; 3. Plaintiff’s medical claims against defendants Does #1, #2, and #3, and claims for attorney’s fees be dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted;

4. Plaintiff’s state law claims be dismissed from the action without prejudice to filing in state court;

5. Defendants Does #1, #2, and #3 (Health Care Providers), be dismissed from this action based on Plaintiff’s failure to state any claims against them upon which relief may be granted; and

6. 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)(l). 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.

Dated: August 16, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE