Sim v. Duran et al

Filing 27

ORDER Adopting 22 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants signed by District Judge Dale A. Drozd on 1/7/2018. (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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HWA SUNG SIM,

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Plaintiff,

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No. 1:16-cv-01051-DAD-SAB

v.
MONICA DURAN, et al.,

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Defendants.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 22)

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Plaintiff Hwa Sung Sim is appearing in forma pauperis in this civil rights action pursuant

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to 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction on August 15, 2016.

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(Doc. No. 5.) To date, defendants have not consented or declined to United States magistrate

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judge jurisdiction.
On March 20, 2017, the assigned magistrate judge screened plaintiff’s first amended

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complaint and found that it stated a cognizable claim against defendant Duran for excessive use

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of force and against Dr. Johal for deliberate indifference to plaintiff’s serious medical need in

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violation of the Eighth Amendment. (Doc. No. 10.) However, the magistrate judge found that

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plaintiff failed to state any other cognizable claim against any other defendants. (Id.) Plaintiff

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was directed to either file a second amended complaint or notify the magistrate judge of his intent

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to proceed only on the claims found to be cognizable. (Id.)

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On April 6, 2017, plaintiff notified the magistrate judge of his intent to proceed only on

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the claims found to be cognizable. (Doc. No. 11.) Therefore, on April 7, 2017, the magistrate

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judge found that service was appropriate as to plaintiff’s claims against defendant Duran for

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excessive use of force and against Dr. Johal for deliberate indifference to plaintiff’s serious

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medical need in violation of the Eighth Amendment. (Doc. No. 12.) The magistrate judge

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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 do so by

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order based on the fact that plaintiff had consented to magistrate judge jurisdiction and no other

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parties had yet appeared. (Id.)

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However, on November 9, 2017, the Ninth Circuit Court of Appeals ruled 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 by way of the April 7, 2017 order.

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

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recommending this action proceed on plaintiff’s claims against defendant Duran for excessive use

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of force and against Dr. Johal for deliberate indifference to a serious medical need in violation of

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the Eighth Amendment and that all other claims and defendants be dismissed. (Doc. No. 22.)

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The findings and recommendations were served on the parties and contained notice that

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objections were to be filed within fourteen days. No objections were filed and the time period in

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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 the case. The undersigned concludes the findings

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and recommendations are supported by the record and by proper analysis.

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Accordingly,

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1. The December 1, 2017 findings and recommendations (Doc. No. 22) are adopted in full;

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2. This action shall continue to proceed on plaintiff’s claims against defendant Duran for

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excessive use of force and against Dr. Johal for deliberate indifference to plaintiff’s
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serious medical need in violation of the Eighth 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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