(PC) Solano v. Tate et al

Filing 46

ORDER ADOPTING #45 FINDINGS AND RECOMMENDATIONS AND DISMISSING Certain Claims for Failure to State a Claim, 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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LIBRADO SOLANO, JR.,

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Plaintiff,

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v.
HAROLD TATE, et al.,

No. 1:15-cv-00756-DAD-SAB

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS FOR FAILURE TO
STATE A CLAIM

Defendants.
(Doc. No. 45)

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Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States Magistrate Judge

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jurisdiction on June 26, 2015. (Doc. No. 5.) To date, defendants have not consented or declined

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to United State magistrate judge jurisdiction.

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On July 29, 2015, the court screened plaintiff’s complaint and found it stated a cognizable

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claim for damages against defendants Drs. Tate and Yin for deliberate indifference to a serious

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medical need in violation of the Eighth Amendment of the United States Constitution. (Doc. No.

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8.) The magistrate judge dismissed plaintiff’s claim against Drs. Tate and Yin in their official

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capacity, his claim for declaratory relief, and his claim against Dr. Tate for the treatment plaintiff

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received following his surgery. (Id.) The magistrate judge indicated jurisdiction to do so by

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order existed under 28 U.S.C. § 636(c) based on the fact that plaintiff had consented to magistrate
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judge jurisdiction and no other parties had yet appeared. (Id.)
On November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process,

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before jurisdiction may vest in a magistrate judge to dispose of a civil case. Williams v. King, 875

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F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge did not have jurisdiction to

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dismiss the above-described claims in the July 29, 2015 order. Therefore, on November 30,

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2017, the magistrate judge issued findings and recommendations recommending that this action

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proceed against defendants Drs. Yin and Tate for deliberate indifference in their individual

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capacities, and that plaintiff’s claims against Drs. Tate and Yin in their official capacity, his claim

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for declaratory relief, and his claim against Dr. Tate for the treatment he received following his

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surgery be dismissed for failure to state a cognizable claim. (Doc. No. 45.) The findings and

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recommendations were served on the parties and contained notice that objections were to be filed

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within fourteen days. No objections were filed and the time period in which to do so has 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 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 November 30, 2017 (Doc. No. 45) are adopted
in full;
2. This action proceeds against defendants Drs. Yin and Tate for deliberate indifference as
explained above; and
3. Plaintiff’s claims against Drs. Yin and Tate in their official capacities, his claim for

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declaratory relief, and his claim against Dr. Tate for the treatment received following his

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surgery are dismissed for failure to state a cognizable claim.

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IT IS SO ORDERED.
Dated:

January 7, 2018
UNITED STATES DISTRICT JUDGE

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