Flowers v. Johnson et al
ORDER Adopting 47 FINDINGS AND RECOMMENDATIONS to Dismiss Claims signed by District Judge Anthony W. Ishii on 2/7/2018. (Sant Agata, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:15-cv-01778-AWI-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS
(ECF No. 47)
Plaintiff is a state prisoner proceeding prose and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On March 7, 2016, the Magistrate Judge screened Plaintiff’s first amended
complaint and dismissed Plaintiff’s Eighth Amendment medical indifference claim against
Lt. Marsh and his official capacity claim against all Defendants. (ECF No. 13.) This case
has proceeded on Plaintiff’s remaining claims.
On January 10, 2018, the Magistrate Judge re-screened Plaintiff’s first amended
complaint, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500
(9th Cir. 2017), held that a magistrate judge does not have jurisdiction to dismiss claims
with prejudice in screening prisoner complaints absent the consent of all parties, even if
the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had here. (ECF
No. 47.) Concurrently, the Magistrate Judge issued findings and recommendations
recommending that the undersigned dismiss the non-cognizable claims. (Id.) The parties
were given fourteen days to file objections to those findings and recommendations. No
objections were filed, and the time in which to do so has now passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,
the Court has conducted a de novo review of Plaintiff’s case. The Court finds the findings
and recommendations to be supported by the record and by proper analysis.
Accordingly, it is HEREBY ORDERED that:
1. The findings and recommendations issued January 10, 2018 (Doc. No. 47),
are adopted in full; and
2. Plaintiff’s Eighth Amendment medical indifference claim against Lt. Marsh
and his official capacity claim against all Defendants are DISMISSED with
3. This case shall continue to proceed on Plaintiff’s Eighth Amendment
excessive force claims against Defendants Martinez and Johnson in their
individual capacities, and Plaintiff’s Eighth Amendment failure to intervene
against Defendant Lt. Marsh in his individual capacity1.
IT IS SO ORDERED.
Dated: February 7, 2018
SENIOR DISTRICT JUDGE
As stated in the Court’s January 29, 2018, order on Defendants’ motion for summary judgment, the
failure to intervene claim is limited to an alleged assault that occurred outside of the Program Office. (ECF
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