Birdsall v. James, et al.

Filing 43

ORDER ADOPTING 38 Findings and Recommendations and Dismissing Certain Claims and Defendants, signed by District Judge Dale A. Drozd on 5/2/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM BIRDSALL,

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No. 1:14-cv-01738-DAD-BAM

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

D. JAMES,
Defendant.

(Doc. No. 38)

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Plaintiff William Birdsall is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action brought pursuant to 42 U.S.C. § 1983. Defendant James has appeared in

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this action, while defendants Sherman and Hall have not.

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On July 5, 2017, the assigned magistrate judge screened plaintiff’s second amended

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complaint and found that he had stated a cognizable Due Process claim against defendant James.

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(Doc. No. 18.) The assigned magistrate judge dismissed all other claims and defendants from this

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action. (Id.) This case now proceeds on plaintiff’s Due Process claim against defendant James.

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On January 22, 2018, the assigned magistrate judge re-screened plaintiff’s second

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

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500 (9th Cir. 2017), 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 named defendants, including those not yet

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appearing, had not consented to magistrate judge jurisdiction. (Doc. No. 38.) Concurrently, the

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assigned magistrate judge issued findings and recommendations, recommending that the

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undersigned dismiss the claims previously found to be non-cognizable by the magistrate judge.

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

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recommendations. Following an extension of time, plaintiff timely filed objections on March 7,

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2018. (Doc. No. 42.)

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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. Having carefully reviewed the entire

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file, including plaintiff’s objections, the court finds the findings and recommendations to be

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supported by the record and by proper analysis.

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In his objections, plaintiff merely reiterates the allegations in his complaint, contending

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that defendants Sherman and Hall violated his rights in failing to “fix” the prison disciplinary

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charge brought against plaintiff for possession of a weapon in response to plaintiff’s filing of an

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inmate grievance. Plaintiff’s allegations in this regard again fail to state a cognizable claim

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against these defendants, and none of plaintiff’s objections provide a legal basis on which to

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question the magistrate judge’s findings and recommendations. Further, in light of plaintiff’s

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previous filing of two amended complaints in this action, the court finds that granting further

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leave to amend would be unwarranted, would unduly delay these proceedings and unnecessarily

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consume scarce judicial resources, and would be futile.

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For these reasons:

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1. The findings and recommendations issued on January 22, 2018 (Doc. No. 38) are adopted

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in full;

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2. Defendants Sherman and Hall are dismissed from this action with prejudice due to
plaintiff’s failure to state any cognizable claims against them; and

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/////

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/////

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3. This action now proceeds solely on the Due Process claim against defendant James as

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alleged in the second amended complaint, that claim having been found to be cognizable

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in the magistrate judge’s prior screening orders. (Doc Nos. 18, 38.)

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IT IS SO ORDERED.
Dated:

May 2, 2018
UNITED STATES DISTRICT JUDGE

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