(PC) Schmaus v. Phillips

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA JASON ERIK SCHMAUS, No. 1:23-cv-01125-JLT-SAB (PC) 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS 13 v. FINDINGS AND RECOMMENDATIONS PHILLIPS, et al. RECOMMENDING DISMISSAL OF CERTAIN CLAIMS AND DEFENDANTS 15 Defendants. (ECF Nos. 21, 29, 30) 17 Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42 18 U.S.C. § 1983.

19 I.

20 DISCUSSION 21 Plaintiff filed the instant action on July 21, 2023. On August 9, 2023, the Court screened Plaintiff’s initial complaint, found no cognizable claims, and granted Plaintiff thirty days to file an amended complaint. (ECF No. 9.)

24 After receiving Plaintiff multiple extensions of time, Plaintiff eventually filed a first amended complaint on January 22, 2024. (ECF No. 19.)

26 On March 18, 2024, the Court screened Plaintiff’s first amended complaint, found he stated a cognizable claim for deliberate indifference and retaliation against Defendant Dr. Aye, but no other claims for relief. (ECF No. 21.) Plaintiff was granted leave to file an amended complaint or notify the Court to proceed only on the claims found to be cognizable. (Id. at 12- 13.) Plaintiff failed to respond to the Court’s March 18, 2024 order, and an order to show cause why the action should not be dismissed was issued on April 29, 2024. (ECF No. 22.) Plaintiff requested and received two extensions of time to respond to the Court’s March 18, 2024 screening order, but no response was filed. on August 2, 2024, the Court issued another order to show cause why the action should not be dismissed. (ECF No. 27.) Plaintiff failed to file a response to the order to show cause. Therefore, on August 26, 2024, the Court issued Findings and Recommendations recommending dismissal of the action for failure to prosecute and failure to comply with a court order. (ECF No. 29.)

10 On September 18, 2024, Plaintiff filed objections to the Findings and Recommendations.

11 (ECF No. 30.) In his objections, Plaintiff submits that he has been suffering from medical complications for several years and did not receive all of the Court’s prior orders and did not intentionally fail to respond thereto. (Id.) Plaintiff also states that he wishes to proceed on the claims found to be cognizable against only Defendant Dr. Aye and consents to dismissal of all other claims and Defendants. (Id.) 16 Accordingly, in light of Plaintiff’s objections the Court will vacate the Findings and Recommendations recommending dismissal of the action and recommend this action proceed only on the deliberate indifference and retaliation claims found to be cognizable against Defendant Dr. Aye. (ECF No. 21.)

20 II.

21 ORDER AND RECOMMENDATIONS 22 Based on the foregoing, it is HEREBY ORDERED that the Findings and Recommendations issued on August 26, 2024 (ECF No. 29) are VACATED.

24 Further, it is HEREBY RECOMMENDED that: 25 1. This action proceed on Plaintiff’s first amended complaint against Defendant Dr. Aye for deliberate indifference and retaliation; and 27 2. All other claims and Defendants be dismissed from the action for failure to state a cognizable claim for relief.

1 These Findings and Recommendations will be submitted to the United States District | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen | (14) days after being served with 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 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

9 IT IS SO ORDERED. DAM Le | Dated: _September 19, 2024 _ UNITED STATES MAGISTRATE JUDGE