Perez v. Padilla

Filing 78

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 71 , signed by District Judge Dale A. Drozd on 1/25/2018: This case is referred back to the magistrate judge for further proceedings. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH PEREZ,

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No. 1:14-cv-01730-DAD-EPG
Plaintiff,

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

R. PADILLA,
(Doc. No. 71)
Defendants,

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Joseph Perez (“plaintiff”) is a former state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a

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

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On June 24, 2016, the assigned magistrate judge screened plaintiff’s complaint and found

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that it stated only a cognizable claim against defendant Padilla and that none of the other claims

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were cognizable. (Doc. No. 25.)

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On December 6, 2017, the assigned magistrate judge re-screened plaintiff’s complaint,

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

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had held that a magistrate judge does not have jurisdiction to dismiss claims with prejudice absent

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the consent of all parties, even if the plaintiff has consented to magistrate judge jurisdiction, as

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plaintiff had here, and the defendants had not yet appeared. (Doc. No. 3.) Concurrently, the

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magistrate judge entered findings and recommendations, recommending that all claims and
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defendants, except for plaintiff’s claim for excessive use of force in violation of the Eighth

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Amendment against defendant R. Padilla, be dismissed. (Doc. No. 71.)

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The parties were provided an opportunity to file objections to the findings and

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recommendations within fourteen days. Neither party filed objections, however, plaintiff sought

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to appeal the findings and recommendations to the Ninth Circuit. (Doc. No. 72.) On January 23,

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2018, the Ninth Circuit Court of Appeals dismissed that appeal for lack of jurisdiction. (Doc. No.

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77.)

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The court will, out of an abundance of caution, consider the points raised by plaintiff in
his dismissed appeal as objections to the findings and recommendations. Construed as such,

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plaintiff’s objections lack merit. In short, it appears plaintiff mistakenly believes that the

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magistrate judge recommended that this action be dismissed in its entirety, but that is not the case.

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(Doc. No. 72 at 2.) The action will proceed on the same excessive use of force claim against

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defendant R. Padilla that was found by the magistrate judge to be cognizable.

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

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and proper analysis.

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Accordingly:

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1. The findings and recommendations issued by the magistrate judge on December 6,

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2017, are adopted in full;
2. All claims and defendants, except for plaintiff’s claim against defendant R. Padilla for

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excessive use of force in violation of the Eighth Amendment are dismissed; and
3. This case is referred back to the magistrate judge for further proceedings.
IT IS SO ORDERED.
Dated:

January 25, 2018
UNITED STATES DISTRICT JUDGE

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