Hackett v. Fisher et al

Filing 44

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants 43 , signed by District Judge Dale A. Drozd on 4/12/2018: This action proceeds solely on plaintiff's Eighth Amendment deliberate indifference claim against defendant Toor regarding conduct in May-June 2016. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN HACKETT,

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No. 1:15-cv-00670-DAD-BAM

Plaintiff,
v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

K. TOOR,

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Defendant.

(Doc. No. 43)

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Plaintiff Stephen Hackett 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. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 21, 2016, the assigned magistrate judge screened plaintiff’s second

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amended complaint and found that it stated cognizable claims against defendant Toor for

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deliberate indifference to plaintiff’s serious medical needs during May–June 2016 in violation of

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the Eighth Amendment, and against defendants Toor, Stolfus, and Sisodia for negligence. (Doc.

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No. 15.) The assigned magistrate judge dismissed all other claims against defendants from this

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action. (Id.)

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On December 20, 2016, the assigned magistrate judge dismissed defendant Stolfus from
this action without prejudice due to plaintiff’s failure to provide sufficient information to
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effectuate service. (Doc. No. 20.) On September 11, 2017, the undersigned granted defendants’

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motion to dismiss as to plaintiff’s state law negligence claims and dismissed defendant Stolfus

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from this action. (Doc. No. 33.) This case now proceeds only against defendant Toor with

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respect to plaintiff’s claim of deliberate indifference in violation of the Eighth Amendment

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regarding conduct in May–June 2016.
On January 22, 2018, the assigned magistrate judge re-screened plaintiff’s second

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amended complaint in light of the decision in Williams v. King, 875 F.3d 500 (9th Cir. 2017),

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which held that a magistrate judge does not have jurisdiction to dismiss claims with prejudice in

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screening prisoner complaints even if a plaintiff has consented to magistrate judge jurisdiction, as

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plaintiff did here, where all named defendants, including those who had not yet appeared in the

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action, had not consented to magistrate judge jurisdiction. (Doc. No. 43.) Concurrently, the

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assigned magistrate judge issued findings and recommendations, recommending that the

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undersigned dismiss all 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. To date, the parties have filed no objections, and the time for doing so has

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now passed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and proper analysis.

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Accordingly,

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adopted in full;

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2.

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Plaintiff’s Eighth Amendment claims against defendants Stolfus and Sisodia are
dismissed;

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3.

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Plaintiff’s Eighth Amendment claim against defendant Toor for delaying the knee
procedures for two years is dismissed;

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The findings and recommendations issued January 22, 2018 (Doc. No. 43) are

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Plaintiff’s custom and practice claim is dismissed as to all defendants; and

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5.

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This action proceeds solely on plaintiff’s Eighth Amendment deliberate
indifference claim against defendant Toor regarding conduct in May–June 2016.

IT IS SO ORDERED.
Dated:

April 12, 2018
UNITED STATES DISTRICT JUDGE

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