Lear v. Biter et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RODERICK WILLIAM LEAR,
JOHNATHAN AKANNO, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 47)
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
action filed 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 of the United States District
Court for the Eastern District of California.
On May 8, 2017, the assigned magistrate judge screened plaintiff’s second amended
complaint (Doc. No. 31) and found that it stated cognizable Eighth Amendment claims against
defendants Akanno and Palomino. (Doc. No. 33.) The remaining claims and defendants were
dismissed by the magistrate judge with prejudice for failure to state a claim. (Id.)
On December 5, 2017, the magistrate judge re-screened plaintiff’s complaint, recognizing
that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017), had held that
a magistrate judge does not have jurisdiction to dismiss claims with prejudice absent the consent
of all parties, even if the plaintiff has consented to magistrate judge jurisdiction, as plaintiff had.
(Doc. No. 47.) Concurrently, the magistrate judge issued findings and recommendations
recommending that the undersigned dismiss the claims found to be non-cognizable. (Id.) The
parties were given fourteen days to file objections to those findings and recommendations.
Plaintiff filed a notice accepting the findings and recommendations on December 28, 2017. (Doc.
No. 49.) No objections were filed and the time for doing so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the
undersigned has conducted a de novo review of plaintiff’s case. Having carefully reviewed the
entire file, the undersigned concludes the findings and recommendations are supported by the
record and by proper analysis.
1. The findings and recommendations issued December 5, 2017 (Doc. No. 47) are adopted in
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.
January 11, 2018
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?