Garcia, Jr. v. Tulare County Main Jail et al

Filing 40

ORDER ADOPTING 39 FINDINGS AND RECOMMENDATIONS AND DISMISSING Certain Claims and Defendants, signed by District Judge Dale A. Drozd on 01/7/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OMAR GARCIA, JR.,

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No. 1:14-cv-00476-DAD-BAM (PC)

Plaintiff,
v.
TULARE COUNTY MAIN JAIL, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 39)

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Plaintiff Omar Garcia, Jr., a state prisoner proceeding pro se and in forma pauperis,

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initiated this civil rights action pursuant to 42 U.S.C. § 1983 while he was detained at the Bob

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Wiley Detention Facility in Visalia, California. Plaintiff is now a state prisoner housed at

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California State Prison, Los Angeles County. Defendants O’Rafferty, Kaiois (sued herein as

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Kaious), Onstott, Flores, Myers (sued herein as Meyers), Avina, and Ellis have appeared in this

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action and consented to magistrate judge jurisdiction. (Doc. No. 19.) Defendant Tulare County

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Main Jail has not yet appeared in this action.

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On April 21, 2017, the assigned magistrate judge screened plaintiff’s first amended

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complaint and found that it stated a cognizable claim against: (1) defendants O’Rafferty and

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Kaiois for excessive use of force in violation of the Fourteenth Amendment; (2) defendant

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Onstott for failure to intervene in violation of the Fourteenth Amendment; (3) defendants
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O’Rafferty, Kaiois, Flores, Avina, Myers, and Ellis for deliberate indifference to plaintiff’s

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serious medical needs in violation of the Fourteenth Amendment; and (4) defendants O’Rafferty,

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Kaiois, Flores, Avina, Myers, and Ellis for state law negligence. (Doc. No. 33.) In that screening

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order the magistrate judge dismissed all other claims and defendants, with prejudice, for failure to

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state a claim. (Id.) This case has since proceeded against defendants O’Rafferty, Kaiois, Onstott,

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Flores, Myers, Avina, and Ellis.

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On December 7, 2017, the assigned magistrate judge re-screened plaintiff’s first amended

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complaint, recognizing that in a recent opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017),

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the Ninth Circuit had held that a magistrate judge does not have jurisdiction to dismiss claims

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with prejudice in screening prisoner complaints even if a plaintiff has consented to magistrate

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judge jurisdiction, as plaintiff did here, where not all defendants, including those not yet

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appearing in the action, had not. (Doc. No. 39.) The magistrate judge issued findings and

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recommendations recommending that plaintiff’s non-cognizable claims be dismissed by the court.

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(Id.) The parties were given fourteen days to file objections to those findings and

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recommendations. The parties did not file any objections, and the time in which to do so has

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expired.

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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 the case. The undersigned concludes the findings

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and recommendations are supported by the record and by proper analysis.

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Accordingly it is hereby ordered that:
1. The findings and recommendations issued on December 7, 2017, (Doc. No. 39) are
adopted in full;
2. Plaintiff’s claims against defendant Tulare County Main Jail are dismissed for failure to
state a claim upon which relief may be granted; and
3. This action proceeds solely on plaintiff’s claims against: (1) defendants O’Rafferty and

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Kaiois for excessive use of force in violation of the Fourteenth Amendment; (2) defendant

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Onstott for failure to intervene in violation of the Fourteenth Amendment; (3) defendants

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O’Rafferty, Kaiois, Flores, Avina, Myers, and Ellis for deliberate indifference to
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plaintiff’s serious medical needs in violation of the Fourteenth Amendment; and (4)

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defendants O’Rafferty, Kaiois, Flores, Avina, Meyers, and Ellis for negligence in

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violation of state law, as alleged in plaintiff’s first amended complaint, those claims

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having been found to be cognizable in the magistrate judge’s prior screening orders (Doc.

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Nos. 33, 39).

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IT IS SO ORDERED.
Dated:

January 7, 2018
UNITED STATES DISTRICT JUDGE

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