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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EFRAIN SALAZAR, 11 12 13 14 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) 15 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 21, 2015, the Magistrate Judge screened Plaintiff’s third amended 21 complaint and concluded that it states a cognizable Eighth Amendment claim against Dr. 22 Winfred Kokor. (ECF No. 19.) The remaining claims and defendants were dismissed with 23 prejudice for failure to state a claim. The matter since has proceeded through discovery 24 and summary judgment before the undersigned. It presently is set for a settlement 25 conference on January 11, 2018, and trial on June 5, 2018. (ECF Nos. 44, 45.) 26 On December 4, 2017, the Magistrate Judge re-screened Plaintiff’s third amended 27 complaint, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 28 1 (9th Cir. 2017), held that a magistrate judge does not have jurisdiction to dismiss claims 2 with prejudice in screening prisoner complaints absent the consent of all parties, even if 3 the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had here. (Doc. 4 No. 47.) Concurrently, the magistrate judge issued findings and recommendations 5 recommending that the undersigned dismiss the non-cognizable claims. (Id.) Plaintiff 6 was given fourteen days to file his objections to those findings and recommendations. 7 Plaintiff did not file any objections, and the time in which to do so has now passed. 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 9 the Court has conducted a de novo review of Plaintiff’s case. The Court finds the findings 10 11 12 13 14 15 16 17 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. 18 19 20 IT IS SO ORDERED. Dated: January 10, 2018 SENIOR DISTRICT JUDGE 21 22 23 24 25 26 27 28 2

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