Sahibi v. Gonzales. et al.

Filing 135

ORDER ADOPTING 132 FINDINGS AND RECOMMENDATIONS and ORDER DISMISSING Certain Claims signed by Chief Judge Lawrence J. O'Neill on 1/4/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OUSSAMA SAHIBI,

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CASE NO. 1:15-cv-01581-LJO-MJS (PC)

Plaintiff,
v.
BORJAS GONZALES, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS
(ECF No. 132)

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 10, 2015, the then-assigned Magistrate Judge screened Plaintiff’s

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complaint and concluded that it states a cognizable Eighth Amendment excessive force

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claim against Defendants Brandon Cope, Borjas Gonzales, Mario Lozano, Howard

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Smith, and Stan, and a Fourteenth Amendment due process claim against Defendant

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Crounse. Plaintiff’s state law claims were found non-cognizable. (ECF No. 6.) Plaintiff

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was given the opportunity to file an amended complaint or proceed only on the

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cognizable claim. (Id.) Plaintiff chose to proceed (ECF No. 8), and the Magistrate Judge

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dismissed the state law claims for failure to state a claim (ECF No. 9).

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The matter since has proceed through discovery, a motion for judgment on the

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pleadings, a motion for summary judgment for failure to exhaust as to Defendant

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Crounse, a motion for summary judgment on the merits as to Defendant Crounse, and

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an unsuccessful settlement conference. It presently is set for a trial on June 26, 2018.

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(ECF No. 73.)

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On December 4, 2017, the 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.

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2017), held that a magistrate judge does not have jurisdiction to dismiss claims with

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

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plaintiff has consented to magistrate judge jurisdiction, as plaintiff had here. (ECF No.

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132.) Concurrently, the magistrate judge issued findings and recommendations

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recommending that the undersigned dismiss the non-cognizable claims. (Id.) The parties

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were given fourteen days to file objections to those findings and recommendations. No

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objections were filed, and the 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. Having carefully reviewed

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the entire file, the Court finds the findings and recommendations to be supported by the

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record and by proper analysis.

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Accordingly, it is HEREBY ORDERED that:
1. The findings and recommendations issued December 4, 2017 are adopted
in full;

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2. The action shall continue to proceed only on an Eighth Amendment

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excessive force claim against Defendants Brandon Cope, Borjas Gonzales,

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Mario Lozano, Howard Smith, and Stan; and a Fourteenth Amendment due

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process claim against Defendant Crounse;

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3. Plaintiff’s state law claims are dismissed with prejudice for failure to state a

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claim.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

January 4, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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