Filed: Feb. 06, 2018
Latest Update: Feb. 06, 2018
Summary: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS (Doc. No. 46) DALE A. DROZD , District Judge . Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On February 7, 2017, the assigned magistrate judge screened plaintiff's complaint and dismissed his claim
Summary: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS (Doc. No. 46) DALE A. DROZD , District Judge . Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302. On February 7, 2017, the assigned magistrate judge screened plaintiff's complaint and dismissed his claims..
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ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 46)
DALE A. DROZD, District Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 7, 2017, the assigned magistrate judge screened plaintiff's complaint and dismissed his claims based on allegations of medical indifference, use of excessively tight restraints, threats, and a cover-up against defendants Izahal, Celedon, Gallagher, Broomfield, Godwin, Davey, Arriola, Paskweitz, Yzaguirre, and Billings. (Doc. No. 9.) This case has since proceeded on plaintiff's remaining claims.
On August 21, 2017, the appearing defendants filed a motion for summary judgment due to plaintiff's failure to exhaust administrative remedies prior to filing suit as required. (Doc No. 36.) The magistrate judge issued findings and recommendations on December 29, 2017, recommending that the motion for summary judgment be granted. (Doc No. 45.) Those findings and recommendations remain pending before the court.
On January 10, 2018, the magistrate judge re-screened plaintiff's complaint, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017), held that a magistrate judge does not have jurisdiction to dismiss claims with prejudice in screening prisoner complaints absent the consent of all parties, including those named defendants who had not yet appeared, even if the plaintiff has consented to magistrate judge jurisdiction as plaintiff had here. (Doc. No. 46.) Concurrently, the magistrate judge issued findings and recommendations recommending that plaintiff's claims previously found to be non-cognizable be dismissed. (Id.) The parties were given fourteen days to file objections to those findings and recommendations. No objections were filed and the time for doing so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the court has conducted a de novo review of plaintiff's case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly:
1. The findings and recommendations issued January 10, 2018 (Doc. No. 46) are adopted in full;
2. Plaintiff's claims against defendants Izahal, Celedon, Gallagher, Broomfield, Godwin, Davey, Arriola, Paskweitz, Yzaguirre, and Billings are dismissed;1 and
3. This action shall continue to proceed on plaintiff's Eighth Amendment excessive use of force claims against defendants Espinoza and Roque, failure to protect claim against defendant James, and deliberate indifference claims against defendants Barnett and Martinez.
IT IS SO ORDERED.
