Solano v. Tate et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LIBRADO SOLANO, JR.,
HAROLD TATE, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS FOR FAILURE TO
STATE A CLAIM
(Doc. No. 45)
Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff consented to United States Magistrate Judge
jurisdiction on June 26, 2015. (Doc. No. 5.) To date, defendants have not consented or declined
to United State magistrate judge jurisdiction.
On July 29, 2015, the court screened plaintiff’s complaint and found it stated a cognizable
claim for damages against defendants Drs. Tate and Yin for deliberate indifference to a serious
medical need in violation of the Eighth Amendment of the United States Constitution. (Doc. No.
8.) The magistrate judge dismissed plaintiff’s claim against Drs. Tate and Yin in their official
capacity, his claim for declaratory relief, and his claim against Dr. Tate for the treatment plaintiff
received following his surgery. (Id.) The magistrate judge indicated jurisdiction to do so by
order existed under 28 U.S.C. § 636(c) based on the fact that plaintiff had consented to magistrate
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)
requires the consent of all named plaintiffs and defendants, even those not served with process,
before jurisdiction may vest in a magistrate judge to dispose of a civil case. Williams v. King, 875
F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge did not have jurisdiction to
dismiss the above-described claims in the July 29, 2015 order. Therefore, on November 30,
2017, the magistrate judge issued findings and recommendations recommending that this action
proceed against defendants Drs. Yin and Tate for deliberate indifference in their individual
capacities, and that plaintiff’s claims against Drs. Tate and Yin in their official capacity, his claim
for declaratory relief, and his claim against Dr. Tate for the treatment he received following his
surgery be dismissed for failure to state a cognizable claim. (Doc. No. 45.) The findings and
recommendations were served on the parties and contained notice that objections were to be filed
within fourteen days. No objections were filed and the time period in which to do so has expired.
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 November 30, 2017 (Doc. No. 45) are adopted
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
declaratory relief, and his claim against Dr. Tate for the treatment received following his
surgery are dismissed for failure to state a cognizable claim.
IT IS SO ORDERED.
January 7, 2018
UNITED STATES DISTRICT JUDGE
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