Turner v. Administrative Security Personell, et al.
ORDER Adopting 44 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims and Defendants signed by District Judge Dale A. Drozd on 1/7/2018. (Sant Agata, S)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
PERSONELL, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS
(Doc. No. 44)
Plaintiff Demareale Turner is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction on
November 30, 2016. (Doc. No. 11.) To date, defendants have not consented or declined to
United State magistrate judge jurisdiction.
On April 17, 2017, the magistrate judge found that plaintiff’s complaint stated a
cognizable claim for excessive use of force against defendants Robles and Hernandez. (Doc. No.
17.) The magistrate judge dismissed all other claims and defendants from the action for failure to
state a cognizable claim for relief. (Id.) The magistrate judge indicated that jurisdiction existed
under 28 U.S.C. § 636(c) to do so by order based on the fact that plaintiff had consented to
magistrate judge jurisdiction and no other parties had yet appeared. (Id.)
However, on November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C.
§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served
with process, before jurisdiction may vest in a magistrate judge to dispose of a civil case.
Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge did not
have jurisdiction to dismiss the above-described claims by way of the April 17, 2017 order.
Therefore, on November 30, 2017, the magistrate judge issued findings and recommendations
recommending that this action proceed on plaintiff’s claim of excessive use of force against
defendants Robles and Hernandez and that all other claims and defendants be dismissed for
failure to state a cognizable claim for relief. The findings and recommendations were served on
the parties and contained notice that objections were to be filed within fourteen days. No
objections were filed and the time period in which to do so has expired.
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 the case. The undersigned concludes the findings
and recommendations are supported by the record and by proper analysis.
Given the foregoing,
1. The November 30, 2017 findings and recommendations (Doc. No. 44) are adopted in full;
2. This action proceeds against defendants Robles and Hernandez on plaintiff’s excessive
use of force claim; 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.
January 7, 2018
UNITED STATES DISTRICT JUDGE
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