Rhodes v. Fresno County, et al.

Filing 74

ORDER ADOPTING 71 FINDINGS AND RECOMMENDATIONS AND DISMISSING Certain Claims and Defendants, 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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PERCY LEE RHODES,

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No. 1:15-cv-01714-DAD-SAB

Plaintiff,
v.
FRESNO COUNTY, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 71)

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Plaintiff Percy Lee Rhodes is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), plaintiff consented to

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magistrate judge jurisdiction on November 23, 2015. (Doc. No. 11.) To date, the served

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defendants have not consented or declined magistrate judge jurisdiction.

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On December 8, 2016, the magistrate judge issued a screening order concerning plaintiff’s

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second amended complaint, finding that it stated a cognizable claim against defendants Vivian, L.

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Her, Pat Alexander, K. Nunez, Jennifer Horton, Dr. Ravijot Gill, and Laure Rodriguez for

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deliberate indifference to a serious medical need under the Fourteenth Amendment. (Doc. No.

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29.) However, the magistrate judge also concluded plaintiff failed to state any other cognizable

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claim against any other defendants. (Id.) Plaintiff was directed to either file a third amended

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complaint or notify the court of his intent to proceed only on the claims found to be cognizable.

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(Id.) On March 13, 2017, plaintiff notified the court of his intent to proceed only on the claims
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found to be cognizable. (Doc. No. 36.) Therefore, on March 16, 2017, the magistrate judge

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found that service was appropriate as to defendants Vivian, L. Her, Pat Alexander, K. Nunez,

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Jennifer Horton, Dr. Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious

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medical need under the Fourteenth Amendment. (Doc. No. 37.) The magistrate judge also

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dismissed all other claims and defendants for failure to state a cognizable claim for relief. (Id.)

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The magistrate judge indicated that jurisdiction existed under 28 U.S.C. § 636(c) to dismiss those

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claims by order based on the fact that plaintiff had consented to magistrate judge jurisdiction and

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no other parties had yet appeared. (Id.)

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However, on November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C.

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§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served

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with process, before jurisdiction may vest in a magistrate judge to dispose of a civil case.

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Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge did not

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have jurisdiction to dismiss the above-described claims in the March 16, 2017 order. Therefore,

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on December 1, 2017, the magistrate judge issued findings and recommendations recommending

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that this action shall proceed against defendants Vivian, L. Her, Pat Alexander, K. Nunez,

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Jennifer Horton, Dr. Ravijot Gill and Laure Rodriguez for deliberate indifference to a serious

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medical need under the Fourteenth Amendment, and all other claims and defendants be dismissed

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for failure to state a cognizable claim. (Doc. No. 71.) The findings and recommendations were

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served on the parties and contained notice that objections were to be filed within fourteen days.

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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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Accordingly,
1. The findings and recommendations issued December 1, 2017 (Doc. No. 71) are adopted in
full;
2. This action shall continue to proceed against defendants Vivian, L. Her, Pat Alexander, K.
Nunez, Jennifer Horton, Dr. Ravijot Gill, and Laure Rodriguez for deliberate indifference
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to a serious medical need under the Fourteenth Amendment; and
3. All other claims and defendants are dismissed from the action for failure to state a
cognizable claim for relief.
IT IS SO ORDERED.
Dated:

January 7, 2018
UNITED STATES DISTRICT JUDGE

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