Ricks v. Kamena et al

Filing 45

ORDER ADOPTING 44 FINDINGS AND RECOMMENDATIONS and Dismissing Certain Claims and Defendants signed by District Judge Dale A. Drozd on 02/26/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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No. 1:15-cv-00715-DAD-BAM (PC)

Plaintiff,
v.
C. KAMENA, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 44)

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Plaintiff Scott K. Ricks is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Defendant Kamena has appeared in this action,

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while defendants Gonzalez, Davis, Alfaro, Briggs, and Angulo have not.

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On July 6, 2016, the assigned magistrate judge screened plaintiff’s complaint and found

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that it stated a cognizable claim against defendant Kamena for the failure to protect plaintiff from

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his cellmate’s attack as he was attacked, and for deliberate indifference to plaintiff’s serious

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medical need following the attack, in violation of the Eighth Amendment. (Doc. No. 16.) After

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plaintiff notified the court that he wished to proceed only on the claims found cognizable by the

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magistrate judge in the screening order, the magistrate judge dismissed all other claims and

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defendants from this action. (Doc. Nos. 17, 18.) Thereafter, this case has proceeded on

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plaintiff’s Eighth Amendment claims against defendant Kamena.
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On January 30, 2018, the assigned magistrate judge re-screened plaintiff’s complaint,

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recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017),

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had 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 not all defendants, including those who have yet to appear in the action,

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had so consented. (Doc. No. 44.) Concurrently, the magistrate judge issued findings and

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recommendations recommending that the undersigned dismiss the claims previously found not to

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be cognizable. (Id.) The parties were given fourteen days to file objections to those findings and

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recommendations. The parties did not file any objections, and the time in which to do so has now

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expired.

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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 the case. The undersigned concludes the findings

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

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Accordingly, it is hereby ordered as follows:

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1.

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The findings and recommendations issued on January 30, 2018 (Doc. No. 44) are
adopted in full;

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2.

Plaintiff’s claims against defendants Gonzalez, Davis, Alfaro, Briggs, and Angulo

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are dismissed from this action for the failure to state a claim upon which relief may

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be granted;

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3.

Defendants Gonzalez, Davis, Alfaro, Briggs, and Angulo are dismissed from this

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action due to plaintiff’s failure to state any cognizable claims for relief against them;

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and

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4.

This action proceeds solely on the claims against defendant Kamena for the failure

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to protect plaintiff from his cellmate’s attack as he was attacked, and for deliberate

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indifference to plaintiff’s serious medical need following the attack, in violation of

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the Eighth Amendment, as alleged in the complaint, those claims having been found to be

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cognizable in the magistrate judge’s prior screening orders (Doc. Nos. 16, 44).

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IT IS SO ORDERED.
Dated:

February 26, 2018
UNITED STATES DISTRICT JUDGE

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