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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIBRADO SOLANO, JR., 12 Plaintiff, 13 14 15 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) 16 17 18 Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States Magistrate Judge 20 jurisdiction on June 26, 2015. (Doc. No. 5.) To date, defendants have not consented or declined 21 to United State magistrate judge jurisdiction. 22 On July 29, 2015, the court screened plaintiff’s complaint and found it stated a cognizable 23 claim for damages against defendants Drs. Tate and Yin for deliberate indifference to a serious 24 medical need in violation of the Eighth Amendment of the United States Constitution. (Doc. No. 25 8.) The magistrate judge dismissed plaintiff’s claim against Drs. Tate and Yin in their official 26 capacity, his claim for declaratory relief, and his claim against Dr. Tate for the treatment plaintiff 27 received following his surgery. (Id.) The magistrate judge indicated jurisdiction to do so by 28 order existed under 28 U.S.C. § 636(c) based on the fact that plaintiff had consented to magistrate 1 1 2 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) 3 requires the consent of all named plaintiffs and defendants, even those not served with process, 4 before jurisdiction may vest in a magistrate judge to dispose of a civil case. Williams v. King, 875 5 F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge did not have jurisdiction to 6 dismiss the above-described claims in the July 29, 2015 order. Therefore, on November 30, 7 2017, the magistrate judge issued findings and recommendations recommending that this action 8 proceed against defendants Drs. Yin and Tate for deliberate indifference in their individual 9 capacities, and that plaintiff’s claims against Drs. Tate and Yin in their official capacity, his claim 10 for declaratory relief, and his claim against Dr. Tate for the treatment he received following his 11 surgery be dismissed for failure to state a cognizable claim. (Doc. No. 45.) The findings and 12 recommendations were served on the parties and contained notice that objections were to be filed 13 within fourteen days. No objections were filed and the time period in which to do so has expired. 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 15 undersigned has conducted a de novo review of plaintiff’s case. The undersigned concludes the 16 findings and recommendations are supported by the record and by proper analysis. 17 18 19 20 21 22 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 23 declaratory relief, and his claim against Dr. Tate for the treatment received following his 24 surgery are dismissed for failure to state a cognizable claim. 25 26 IT IS SO ORDERED. Dated: January 7, 2018 UNITED STATES DISTRICT JUDGE 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?