Salazar v. Kokor et al

Filing 49

ORDER Adopting 47 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims signed by District Judge Anthony W. Ishii on 1/10/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EFRAIN SALAZAR,

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CASE NO. 1:14-cv-00211-AWI-MJS (PC)

Plaintiff,
v.
DR. KOKOR, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS
(ECF No. 47)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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

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

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On September 21, 2015, the Magistrate Judge screened Plaintiff’s third amended

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complaint and concluded that it states a cognizable Eighth Amendment claim against Dr.

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Winfred Kokor. (ECF No. 19.) The remaining claims and defendants were dismissed with

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prejudice for failure to state a claim. The matter since has proceeded through discovery

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and summary judgment before the undersigned. It presently is set for a settlement

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conference on January 11, 2018, and trial on June 5, 2018. (ECF Nos. 44, 45.)

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On December 4, 2017, the Magistrate Judge re-screened Plaintiff’s third amended

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complaint, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500

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(9th Cir. 2017), held that a magistrate judge does not have jurisdiction to dismiss claims

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with prejudice in screening prisoner complaints absent the consent of all parties, even if

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the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had here. (Doc.

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No. 47.) Concurrently, the magistrate judge issued findings and recommendations

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recommending that the undersigned dismiss the non-cognizable claims. (Id.) Plaintiff

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was given fourteen days to file his objections to those findings and recommendations.

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Plaintiff did not file any objections, and the time in which to do 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,

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the Court has conducted a de novo review of Plaintiff’s case. The Court finds the findings

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and recommendations to be supported by the record and by proper analysis.
Accordingly, it is HEREBY ORDERED that:
1. The findings and recommendations issued December 4, 2017 are adopted
in full;
2. The action shall continue to proceed only on Plaintiff’s cognizable Eighth
Amendment claim against Defendant Kokor; and
3. All other claims and defendants are dismissed with prejudice for failure to
state a claim.

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IT IS SO ORDERED.
Dated: January 10, 2018
SENIOR DISTRICT JUDGE

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