Germany v. Coelho, et al.

Filing 40

ORDER ADOPTING 34 FINDINGS AND RECOMMENDATIONS AND DISMISSING Certain Claims and Defendants, signed by District Judge Dale A. Drozd on 01/5/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANKIE L. GERMANY,

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Plaintiff,

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v.

No. 1:17-cv-00005-DAD-SAB (PC)

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS AND DEFENDANTS

M. COELHO,
Defendants.

(Doc. No. 12, 16, 34)

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Plaintiff Frankie L. Germany is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
Plaintiff consented to United States Magistrate Judge jurisdiction under 28 U.S.C. §

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636(c) on March 21, 2017. (Doc. No. 7.) To date, defendants have not consented or declined to

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United States magistrate judge jurisdiction.

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On July 12, 2017, the assigned magistrate judge found that plaintiff’s first amended

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complaint stated a cognizable claim for excessive force against defendants M Coelho, Garcia-

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Fermandz, P. Ward and Hanson. (Doc. No. 16.) The magistrate judge dismissed all other claims

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and defendants from the action for failure to state a cognizable claim for relief. (Id.) The

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magistrate judge indicated that jurisdiction existed under 28 U.S.C. § 636(c) based on the fact that
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plaintiff had consented to magistrate judge jurisdiction and no other parties had yet appeared in

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the action. (Id.)

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Defendants filed an answer to the complaint on September 11, 2017.

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On September 28, 2017, defendants filed a motion for summary judgment based on

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plaintiff’s failure to exhaust administrative remedies. On November 9, 2017, the magistrate judge

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issued findings and recommendations recommending that defendants’ motion for summary

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judgment be granted and the action be dismissed, without prejudice, due to plaintiff’s failure to

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exhaust his administrative remedies prior to filing suit as required.1

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On November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C. § 636(c)(1)

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requires the consent of all named plaintiffs and defendants, even those not served with process,

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before jurisdiction may vest in a magistrate judge to dispose of a civil case. Williams v. King, 875

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F.3d 500, 504 (9th Cir. 2017). Therefore, on November 30, 2017, the magistrate judge issued

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findings and recommendations recommending that this action proceed against defendants M

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Coelho, Garcia-Fernandez, P. Ward and Hanson on plaintiff’s claim for excessive use of force

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and that all other claims and defendants be dismissed for failure to state a cognizable claim for

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relief. Those 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 to

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do so has expired. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, the undersigned has conducted a de novo review of plaintiff’s case. The undersigned

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

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Accordingly,

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1. The November 30, 2017 findings and recommendations are adopted in full;

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2. For screening purposes only, plaintiff has stated a cognizable claim against defendants

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M Coelho, Garcia-Fernandez, P. Ward and Hanson for excessive force; and

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/////

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On December 6, 2017, the court granted plaintiff thirty days to file objections to the November
9, 2017 findings and recommendations.
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3. All other claims and defendants are dismissed from the action for failure to state a

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cognizable claim.
IT IS SO ORDERED.
Dated:

January 5, 2018
UNITED STATES DISTRICT JUDGE

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