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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODERICK WILLIAM LEAR, 12 13 14 15 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) 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District 20 Court for the Eastern District of California. 21 On May 8, 2017, the assigned magistrate judge screened plaintiff’s second amended 22 complaint (Doc. No. 31) and found that it stated cognizable Eighth Amendment claims against 23 defendants Akanno and Palomino. (Doc. No. 33.) The remaining claims and defendants were 24 dismissed by the magistrate judge with prejudice for failure to state a claim. (Id.) 25 On December 5, 2017, the magistrate judge re-screened plaintiff’s complaint, recognizing 26 that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017), had held that 27 a magistrate judge does not have jurisdiction to dismiss claims with prejudice absent the consent 28 of all parties, even if the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had. 1 1 (Doc. No. 47.) Concurrently, the magistrate judge issued findings and recommendations 2 recommending that the undersigned dismiss the claims found to be non-cognizable. (Id.) The 3 parties were given fourteen days to file objections to those findings and recommendations. 4 Plaintiff filed a notice accepting the findings and recommendations on December 28, 2017. (Doc. 5 No. 49.) No objections were filed and the time for doing so has passed. 6 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 7 undersigned has conducted a de novo review of plaintiff’s case. Having carefully reviewed the 8 entire file, the undersigned concludes the findings and recommendations are supported by the 9 record and by proper analysis. 10 11 12 13 14 15 16 17 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 18 19 20 21 22 23 24 25 26 27 28 2

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