Willis v. Kandkhorova

Filing 36

ORDER adopting 35 FINDINGS AND RECOMMENDATIONS and dismissing certain claims signed by District Judge Anthony W. Ishii on 2/2/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AVERILLE WILLIS,

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Plaintiff,

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CASE NO. 1:15-cv-01572-AWI-MJS (PC)

v.
NELLYA KANDKHOROVA,

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Defendant.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS
(ECF No. 35)

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Plaintiff is a state prisoner proceeding in forma pauperis and with counsel in this

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civil rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a

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

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302.

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On March 25, 2016, the Court screened Plaintiff’s first amended complaint (ECF

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No. 9) and found it states a cognizable Eighth Amendment claim for damages and

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injunctive relief against Defendant Kandkhorova. (ECF No. 10.) The remaining claim for

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declaratory relief was dismissed with prejudice as subsumed within the damages claim.

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Additionally, Plaintiff’s claim for preliminary injunctive relief was denied.

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On December 8, 2017, the Magistrate Judge re-screened Plaintiff’s third amended

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complaint, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500

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(9th Cir. 2017), held that a magistrate judge does not have jurisdiction to dismiss claims

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with prejudice in screening prisoner complaints absent the consent of all parties, even if

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the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had here. (Doc.

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No. 35.) Concurrently, the Magistrate Judge issued findings and recommendations

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recommending that the undersigned dismiss the non-cognizable claims and deny the

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request for preliminary injunctive relief. (Id.) The parties were given fourteen days to file

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objections to those findings and recommendations. No objections were filed, and the

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time in which to do so has now passed.

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

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the Court has conducted a de novo review of Plaintiff’s case. The Court finds the findings

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and recommendations to be supported by the record and by proper analysis.

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Accordingly, it is HEREBY ORDERED that:

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1. The findings and recommendations issued December 8, 2017 are adopted

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in full;

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2. The action shall continue to proceed only on Plaintiff’s cognizable Eighth

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Amendment claim for damages and permanent injunctive relief against

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Defendant Kandkhorova; and

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3.

All other claims are dismissed with prejudice;

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4.

Plaintiff’s request for preliminary injunctive relief is denied.

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IT IS SO ORDERED.

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Dated: February 2, 2018
SENIOR DISTRICT JUDGE

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