Perrotte v. Johnson et al

Filing 120

ORDER ADOPTING 112 FINDINGS AND RECOMMENDATIONS AND DISMISSING DEFENDANT ALLISON, signed by Chief Judge Lawrence J. O'Neill on 1/12/2018. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY P. PERROTTE,

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Plaintiff,
v.
STACEY JOHNSON, et al.,
Defendants.

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Case No. 1:15-cv-00026-LJO-SAB (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
DEFENDANT ALLISON
[ECF No. 112]

Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On May 28, 2015, the Court found that Plaintiff’s complaint stated a cognizable retaliation

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claim against Defendants Johnson, LeFlore and Hebron and a cognizable claim for cruel and unusual

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punishment against Defendants Johnson and LeFlore. (ECF No. 10.) The Court dismissed Defendant

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Allison for failure to state a cognizable claim for relief. (Id.) The Court indicated that jurisdiction

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existed under 28 U.S.C. § 636(c) based on the fact that Plaintiff had consented to Magistrate Judge

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jurisdiction and no other parties had yet appeared. (Id.)

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On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process, before

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jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __,

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Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not
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have jurisdiction to dismiss the Defendants in its May 28, 2015 order. Therefore, on November 30,

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2017, the Magistrate Judge issued Findings and Recommendations recommending that this action

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proceed against Defendants Johnson, LeFlore and Hebron for retaliation and against Defendants

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Johnson and LeFlore for cruel and unusual punishment. It was further recommended that Defendants

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Allison and Does 1 through 10 be dismissed for failure to state a cognizable claim for relief. The

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Findings and Recommendations were served on the parties and contained notice that objections were

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to be filed within fourteen days. Plaintiff filed objections on December 28, 2017.
In his objections, Plaintiff contends that this action should proceed on his claims against Does

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1 through 10, as well as the other named Defendants. Upon review of the operative complaint, the

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Court finds that Plaintiff has stated a cognizable claim against Does 1 through 10 for retaliation and

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cruel and unusual punishment, and this action shall proceed against those unidentified Defendants as

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well as the named Defendants. Plaintiff is advised that the Court cannot order service of a Doe

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defendant because the United States Marshal cannot serve a Doe Defendant. Therefore, before the

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Court orders the United States Marshal to serve a Doe defendant, Plaintiff will be required to identify

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him or her with enough information to locate the defendant for service of process. The United States

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Marshal cannot initiate service of process on unknown defendants. Plaintiff will be given an

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opportunity through discovery to identify the unknown (Doe) defendants. Crowley v. Bannister, 734

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F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). Once

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the identity of a Doe defendant is ascertained, the Plaintiff must file a motion to amend his complaint

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only to identify the identified Doe defendant so that service by the United States Marshal can be

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attempted. Therefore, the court will send plaintiff the appropriate service documents at such time that

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plaintiff ascertains the identities of the Doe defendants. However, if Plaintiff fails to identify any Doe

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defendant during the course of the discovery, any Doe Defendant will be dismissed from this action.
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 Plaintiff’s case. The undersigned concludes the

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Findings and Recommendations are supported by the record and by proper analysis as modified

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herein.

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Based on the foregoing, it is HEREBY ORDERED that:

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The November 30, 2017 Findings and Recommendations are adopted as modified

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This action shall proceed against Defendants Johnson, LeFlore Hebron, and Does 1

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herein;

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through 10 for retaliation and against Defendants Johnson, LeFlore, and Does 1 through 10 for cruel

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and unusual punishment; and

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3.

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Defendant Allison is dismissed from the action for failure to state a cognizable claim

for relief.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

January 12, 2018

UNITED STATES CHIEF DISTRICT JUDGE

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