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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY P. PERROTTE, 12 13 14 15 Plaintiff, v. STACEY JOHNSON, et al., Defendants. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) 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 20 claim against Defendants Johnson, LeFlore and Hebron and a cognizable claim for cruel and unusual 21 punishment against Defendants Johnson and LeFlore. (ECF No. 10.) The Court dismissed Defendant 22 Allison for failure to state a cognizable claim for relief. (Id.) The Court indicated that jurisdiction 23 existed under 28 U.S.C. § 636(c) based on the fact that Plaintiff had consented to Magistrate Judge 24 jurisdiction and no other parties had yet appeared. (Id.) 25 On November 9, 2017, the Ninth Circuit Court of Appeals ruled that 28 U.S.C. § 636(c)(1) 26 requires the consent of all named plaintiffs and defendants, even those not served with process, before 27 jurisdiction may vest in a Magistrate Judge to dispose of a civil case. Williams v. King, __ F.3d __, 28 Case No. 15-15259, 2017 WL 5180205, *3 (9th Cir. Nov. 9, 2017). Accordingly, the Court did not 1 1 have jurisdiction to dismiss the Defendants in its May 28, 2015 order. Therefore, on November 30, 2 2017, the Magistrate Judge issued Findings and Recommendations recommending that this action 3 proceed against Defendants Johnson, LeFlore and Hebron for retaliation and against Defendants 4 Johnson and LeFlore for cruel and unusual punishment. It was further recommended that Defendants 5 Allison and Does 1 through 10 be dismissed for failure to state a cognizable claim for relief. The 6 Findings and Recommendations were served on the parties and contained notice that objections were 7 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 8 9 1 through 10, as well as the other named Defendants. Upon review of the operative complaint, the 10 Court finds that Plaintiff has stated a cognizable claim against Does 1 through 10 for retaliation and 11 cruel and unusual punishment, and this action shall proceed against those unidentified Defendants as 12 well as the named Defendants. Plaintiff is advised that the Court cannot order service of a Doe 13 defendant because the United States Marshal cannot serve a Doe Defendant. Therefore, before the 14 Court orders the United States Marshal to serve a Doe defendant, Plaintiff will be required to identify 15 him or her with enough information to locate the defendant for service of process. The United States 16 Marshal cannot initiate service of process on unknown defendants. Plaintiff will be given an 17 opportunity through discovery to identify the unknown (Doe) defendants. Crowley v. Bannister, 734 18 F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). Once 19 the identity of a Doe defendant is ascertained, the Plaintiff must file a motion to amend his complaint 20 only to identify the identified Doe defendant so that service by the United States Marshal can be 21 attempted. Therefore, the court will send plaintiff the appropriate service documents at such time that 22 plaintiff ascertains the identities of the Doe defendants. However, if Plaintiff fails to identify any Doe 23 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 24 25 undersigned has conducted a de novo review of Plaintiff’s case. The undersigned concludes the 26 Findings and Recommendations are supported by the record and by proper analysis as modified 27 herein. 28 2 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. The November 30, 2017 Findings and Recommendations are adopted as modified 2. This action shall proceed against Defendants Johnson, LeFlore Hebron, and Does 1 3 4 herein; 5 through 10 for retaliation and against Defendants Johnson, LeFlore, and Does 1 through 10 for cruel 6 and unusual punishment; and 7 3. 8 Defendant Allison is dismissed from the action for failure to state a cognizable claim for relief. 9 10 11 12 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ January 12, 2018 UNITED STATES CHIEF DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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