Lear v. Biter et al

Filing 50

ORDER Adopting 47 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants signed by District Judge Dale A. Drozd on 1/11/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODERICK WILLIAM LEAR,

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No. 1:15-cv-01903-DAD-MJS

Plaintiff,
v.
JOHNATHAN AKANNO, et al.,
Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 47)

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

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action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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

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Court for the Eastern District of California.

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On May 8, 2017, the assigned magistrate judge screened plaintiff’s second amended

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complaint (Doc. No. 31) and found that it stated cognizable Eighth Amendment claims against

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defendants Akanno and Palomino. (Doc. No. 33.) The remaining claims and defendants were

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dismissed by the magistrate judge with prejudice for failure to state a claim. (Id.)

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On December 5, 2017, the magistrate judge re-screened plaintiff’s complaint, recognizing

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that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017), had held that

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a magistrate judge does not have jurisdiction to dismiss claims with prejudice absent the consent

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of all parties, even if the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had.
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(Doc. No. 47.) Concurrently, the magistrate judge issued findings and recommendations

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recommending that the undersigned dismiss the claims found to be non-cognizable. (Id.) The

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parties were given fourteen days to file objections to those findings and recommendations.

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Plaintiff filed a notice accepting the findings and recommendations on December 28, 2017. (Doc.

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No. 49.) No objections were filed and the time for doing so has passed.

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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. Having carefully reviewed the

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entire file, the undersigned concludes the findings and recommendations are supported by the

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record and by proper analysis.

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Accordingly:
1. The findings and recommendations issued December 5, 2017 (Doc. No. 47) are adopted in
full;
2. This action shall continue to proceed only on plaintiff’s Eighth Amendment claims against
defendants Akanno and Palomino; and
3. All other claims and defendants are dismissed with prejudice.
IT IS SO ORDERED.
Dated:

January 11, 2018
UNITED STATES DISTRICT JUDGE

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