Palmer v. Woodford et al

Filing 76

ORDER Adopting 72 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants signed by District Judge Lawrence J. O'Neill on 11/21/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WILL MOSES PALMER, III,

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CASE NO. 1:06-cv-00512-LJO-BAM PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

v.
JEANNE WOODFORD, et al.,

(ECF Nos. 72, 75)

Defendants.
/

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Plaintiff Will Moses, Palmer, III (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On March 22, 2010, this action was dismissed after an erroneous finding that he was subject

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to 42 U.S.C. § 1915(g). Following the reassignment of this action, the undersigned issued an order

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granting Plaintiff’s motion for reconsideration, the action was reinstated, and referred back to the

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Magistrate Judge. On August 22, 2011, in light of the reassignment of this action, the Magistrate

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Judge re-screened the complaint and an order issued directing Plaintiff to notify the court which of

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his unrelated cognizable claims he wished to proceed on in this action. On September 12, 2011,

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Plaintiff filed an objection to the appointment of a Magistrate Judge. Plaintiff filed a response on

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September 21, 2011, notifying the Court which of the claims he wished to proceed on in this action.

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An order issued on October 12, 2011, addressing Plaintiff’s objection to the appointment of the

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Magistrate Judge. On October 12, 2011, the Magistrate Judge filed a findings and recommendations

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recommending dismissing certain claims and defendants which contained notice to the parties that

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any objections to the findings and recommendations were to be filed within thirty days. On

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November 17, 2011, Plaintiff filed an objection.

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In his objections, Plaintiff states that the Magistrate Judge did not address his claims against
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Defendant Johnson. The Court has reviewed the first amended complaint. While Plaintiff’s

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objection refers to numerous allegations against Defendant Johnson, the first amended complaint

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contains very little mention of her. In the first amended compliant, Plaintiff states that after he was

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transferred to the Substance Abuse Treatment Facility (“SATF”), Plaintiff was issued an

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Administrative Segregation Unit (“ASU”) Placement Notice informing him that Defendant Johnson

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had told Defendant Gallagher that she feared for her safety because of Plaintiff’s presence. Prior to

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being transferred to SATF, Plaintiff had been informed that he would not be placed in ASU due to

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Defendant Johnson being employed at SATF. (First Am. Compl. 3.2, ECF No. 18.) In his objection

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Plaintiff claims numerous allegations were not addressed, however, these allegations were not

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included in the first amended complaint and the Magistrate Judge was not in error in failing to find

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a claim against Defendant Johnson.

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Plaintiff objects to the Magistrate Judge re-screening his complaint. This case has been

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assigned to the undersigned due to Defendants’ declining to consent to the jurisdiction of the

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Magistrate Judge. Where a party declines Magistrate Judge jurisdiction the District Judge will

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resolve all dispositive matters and conduct the trial, if there is one. However, a party’s decision to

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decline Magistrate Judge jurisdiction has no effect on the referral of a case to a Magistrate Judge,

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made pursuant to section 636 and Local Rule 302, for non-dispositive matters and for the issuance

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of findings and recommendations on dispositive motions.

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Additionally, Plaintiff objects to the pleading standard set forth in Ashcroft v. Iqbal, 129 S.

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Ct. 1937 (2009), being retroactively applied to this action. The Court is required to screen

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complaints brought by prisoners seeking relief against a governmental entity or officer or employee

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of a governmental entity, 28 U.S.C. § 1915A(a), and must dismiss a complaint or portion thereof if

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the prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon

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which relief may be granted, or that seek monetary relief from a defendant who is immune from such

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relief, 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may

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have been paid, the court shall dismiss the case at any time if the court determines that . . . the action

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or appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii)

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(emphasis added). Accordingly, screening and re-screening that may result in dismissal of claims
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and/or defendants can be done at any time and should be done when clarifications in pleading

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standards are rendered by higher courts which narrow and/or clarify claims raised in any pending

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action. Based upon this action being reassigned and reinstated the Magistrate Judge acted within her

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authority in re-screening in light of the changed pleading standards as delineated in Iqbal, 129 S. Ct.

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1937; see Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). It matters not that prior

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screening of this action was conducted under more lenient standards. When new precedent is

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enacted by higher courts, it does not apply solely to cases that are subsequently filed; rather it is to

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apply to all pending cases unless specified to the contrary.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings

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and recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The findings and recommendations, filed October 12, 2011, is adopted in full;

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2.

This action shall proceed on the first amended complaint, filed August 29, 2007,

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against Defendants Jordnt and Bardonnex for retaliation and denial of access to the

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court in violation of the First Amendment for damages;

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3.

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Defendants Jordnt and Bardonnex are ordered to file a responsive pleading within
thirty days;

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4.

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All remaining claims and Defendants are dismissed from this action, without
prejudice;

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5.

Defendant Tarter’s motion to dismiss, filed October 8, 2009, is denied as moot; and

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This action is referred back to the Magistrate Judge.

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IT IS SO ORDERED.

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Dated:
b9ed48

November 21, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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