Russell v. Toar et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RODERICK BRYON RUSSELL, JR.,
DR. K. TOOR, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 23)
Plaintiff Roderick Byron Russell, Jr., is a former state prisoner proceeding pro se and in
forma pauperis pursuant to 42 U.S.C. § 1983. Defendant Dr. K. Toor has appeared in this action,
while defendants N.P. Woodward, Dr. Shwe, and Dr. Malakkla have not.
Plaintiff consented to magistrate judge jurisdiction on March 2, 2015. (Doc. No. 4.) On
November 7, 2016, the assigned magistrate judge screened plaintiff’s third amended complaint
and found that plaintiff stated a cognizable claim against defendant Toor for deliberate
indifference in violation of the Eighth Amendment. (Doc. No. 16.) The magistrate judge
dismissed all claims against defendants N.P. Woodward, Dr. Shwe, and Dr. Malakkla, with
prejudice, for the failure to state a claim. (Id.)
However, on November 30, 2017, the magistrate judge reinstated plaintiff’s previously
dismissed claims, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500
(9th Cir. 2017), had held that a magistrate judge does not have jurisdiction to dismiss claims
when screening prisoner complaints where plaintiff has consented, but the unserved defendants
have not consented. (Doc. No. 23.) Concurrently, the magistrate judge issued findings and
recommendations recommending that the reinstated claims be dismissed. (Id.) Plaintiff was
given fourteen days to file any objections to those findings and recommendations. Plaintiff did
not file any objections, and the time in which to do so has now passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the
undersigned has conducted a de novo review of plaintiff’s case. The undersigned concludes the
findings and recommendations are supported by the record and by proper analysis.
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
indifference in violation of the Eighth Amendment as alleged in plaintiff’s third amended
complaint, those claims having been found to be cognizable in the magistrate judge’s prior
screening order (Doc. No. 16).
IT IS SO ORDERED.
January 7, 2018
UNITED STATES DISTRICT JUDGE
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