Masterson v. Killen et al

Filing 174

ORDER ADOPTING 173 FINDINGS AND RECOMMENDATIONS and Dismissing Certain Defendants signed by District Judge Dale A. Drozd on 01/08/2018. New Case Number 1:11-cv-1179 SAB.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL MASTERSON,

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Plaintiff,

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v.

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S. KILLEN, et al.,

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No. 1:11-cv-01179-DAD-SAB

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN DEFENDANTS
Defendants.

(Doc. No. 173)

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Plaintiff Daniel Masterson is a state prisoner appearing pro se and in forma pauperis in
this civil rights action brought pursuant to 42 U.S.C. § 1983.
On June 13, 2014, the assigned magistrate judge screened plaintiff’s then-pending third

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amended complaint pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). (Doc. No. 29.)

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The magistrate judge found that the third amended complaint stated a cognizable claim for

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retaliation in violation of the First Amendment against defendants Killen, Hampson, Hall, Fisher,

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Rodriguez, Santoro, and Tolson, and for conspiracy to retaliate against defendants Killen,

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Hampson, Hall, Rodriguez, Santoro, and Tolson. (Doc. No. 8.) The magistrate judge also found

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that plaintiff stated a cognizable supplemental state law claim for property deprivation. (Id. at

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16–17.) Finally, the magistrate judge determined that plaintiff did not state any other cognizable

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claims. Plaintiff was directed to notify the court in writing whether he was willing to proceed on
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the claims found cognizable in the third amended complaint.
On June 25, 2014, plaintiff filed notice of his intent to proceed only on the claims found to

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be cognizable by the magistrate judge in the June 13, 2014 screening order. (Doc. No. 30.) On

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that basis, on June 30, 2014, the magistrate judge issued an order dismissing the other claims and

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defendants for the failure to state a cognizable claim for relief. (Doc. No. 31). The magistrate

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judge indicated that jurisdiction existed under 28 U.S.C. § 636(c) to do so by order based on the

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fact that plaintiff had consented to magistrate judge jurisdiction and no other parties had yet

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appeared. (Id.) The case then proceeded on plaintiff’s claims listed above.

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On August 16, 2017, the undersigned ruled on several motions, including a motion for

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summary judgment on certain then-pending claims. (Doc. No. 159.) Shortly thereafter, as of

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September 15, 2017, the defendants in the action at the time consented to magistrate judge

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jurisdiction. (Doc. Nos. 6, 164.) Accordingly, on September 26, 2017, the court reassigned this

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action from the docket of United States District Judge Dale A. Drozd to the docket of United

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States Magistrate Judge Stanley A. Boone for all further proceedings, including trial and entry of

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judgment, pursuant to 28 U.S.C. § 636(c)(1). (Doc. No. 165.)

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However, on November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C.

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§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served

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with process, before jurisdiction may vest in a magistrate judge to dispose of a civil case.

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Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017). On December 5, 2017, the assigned

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magistrate judge reinstated plaintiff’s previously dismissed claims in light of the decision in

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Williams. (Doc. No. 173.) Concurrently, the assigned magistrate judge issued findings and

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recommendations recommending that the undersigned dismiss those reinstated claims. (Id.) The

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parties were given fourteen days to file objections to those findings and recommendations. To

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date, neither party has done so, and the time for doing so has now passed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the

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undersigned has conducted a de novo review of this case. Having carefully reviewed the entire

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file, the court finds the findings and recommendations to be supported by the record and by

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proper analysis.
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Accordingly,

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1.

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The findings and recommendations issued on December 5, 2017 (Doc. No. 173)
are adopted in full;

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Plaintiff’s equal protection claims, due process claims, failure to protect claim, and

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claims for denial of access to the courts are dismissed for the failure to state a

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claim upon which relief may be granted;

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3.

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Defendants Cordova and Gomez are dismissed from this action based on the
failure to state a claim against them upon which relief may be granted;

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All parties having consented to magistrate judge jurisdiction for all further

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proceedings in this action pursuant to 28 U.S.C. § 636(c), (Doc. Nos. 6, 164), the

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court reassigns the action to United States Magistrate Judge Stanley A. Boone for

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all further proceedings. All papers filed in this action shall now bear the new case

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number: 1:11-cv-01179-SAB.

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IT IS SO ORDERED.
Dated:

January 8, 2018
UNITED STATES DISTRICT JUDGE

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