Russell v. Toar et al

Filing 25

ORDER ADOPTING 23 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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RODERICK BRYON RUSSELL, JR.,

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No. 1:15-cv-00255-DAD-SAB

Plaintiff,
v.
DR. K. TOOR, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 23)

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Plaintiff Roderick Byron Russell, Jr., is a former state prisoner proceeding pro se and in

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forma pauperis pursuant to 42 U.S.C. § 1983. Defendant Dr. K. Toor has appeared in this action,

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while defendants N.P. Woodward, Dr. Shwe, and Dr. Malakkla have not.

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Plaintiff consented to magistrate judge jurisdiction on March 2, 2015. (Doc. No. 4.) On

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November 7, 2016, the assigned magistrate judge screened plaintiff’s third amended complaint

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and found that plaintiff stated a cognizable claim against defendant Toor for deliberate

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indifference in violation of the Eighth Amendment. (Doc. No. 16.) The magistrate judge

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dismissed all claims against defendants N.P. Woodward, Dr. Shwe, and Dr. Malakkla, with

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prejudice, for the failure to state a claim. (Id.)

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However, on November 30, 2017, the magistrate judge reinstated plaintiff’s previously

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dismissed claims, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500

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(9th Cir. 2017), had held that a magistrate judge does not have jurisdiction to dismiss claims
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when screening prisoner complaints where plaintiff has consented, but the unserved defendants

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have not consented. (Doc. No. 23.) Concurrently, the magistrate judge issued findings and

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recommendations recommending that the reinstated claims be dismissed. (Id.) Plaintiff was

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given fourteen days to file any objections to those findings and recommendations. Plaintiff did

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not file any objections, and the time in which to do so has now passed.

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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 plaintiff’s case. The undersigned concludes the

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

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Given the foregoing:
1. The findings and recommendations issued on November 30, 2017 (Doc. No. 23) are
adopted in full;
2. Plaintiff’s claims against defendants N.P. Woodward, Dr. Shwe, and Dr. Malakkla are
dismissed for the failure to state a claim upon which relief may be granted; and
3. This action proceeds solely on plaintiff’s claim against defendant Toor for deliberate

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indifference in violation of the Eighth Amendment as alleged in plaintiff’s third amended

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complaint, those claims having been found to be cognizable in the magistrate judge’s prior

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screening order (Doc. No. 16).

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IT IS SO ORDERED.
Dated:

January 7, 2018
UNITED STATES DISTRICT JUDGE

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