Cortinas v. Huerta et al

Filing 22

FINDINGS and RECOMMENDATIONS to Dismiss Claims and Defendants, Consistent with Magistrate Judge's Prior Order, In Light of Williams Decision, signed by Magistrate Judge Gary S. Austin on 12/15/17. Referred to Judge Ishii. Objections to F&R Due Within Fourteen Days. (Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LARRY WILLIAM CORTINAS,

12

Plaintiff,

13
14

vs.
M. HUERTA, et al.,

15

Defendants.

1:17-cv-00130-AWI-GSA-PC
FINDINGS AND RECOMMENDATION
TO DISMISS CLAIMS AND
DEFENDANTS, CONSISTENT WITH
MAGISTRATE JUDGE’S PRIOR ORDER,
IN LIGHT OF WILLIAMS DECISION
(ECF NO. 11.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN (14) DAYS

16
17
18

I.

BACKGROUND

19

Larry William Cortinas (“Plaintiff”) is a state prisoner proceeding pro se and in forma

20

pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds

21

with the original Complaint, filed on January 30, 2017, against defendants C/O J. Scalia and

22

C/O M. Huerta for use of excessive force in violation of the Eighth Amendment, and against

23

defendant C/O J. Scalia for retaliation in violation of the First Amendment. (ECF No. 1.)

24

Plaintiff has consented to magistrate judge jurisdiction and Defendants have not

25

consented to or declined magistrate judge jurisdiction. (ECF No. 8.) However, the magistrate

26

judge previously screened Plaintiff’s Complaint before any defendants appeared. (ECF Nos. 9,

27

11.) On August 31, 2017, the court issued a screening order finding that Plaintiff stated a claim

28

against defendants Scalia and Huerta for use of excessive force in violation of the Eighth
1

1

Amendment, and against defendant Scalia for retaliation in violation of the First Amendment,

2

but no other claims against any of the Defendants. (ECF No. 9.) The court’s order required

3

Plaintiff to either file an amended complaint or notify the court of his willingness to proceed

4

only against Defendants Scalia and Huerta on the claims found cognizable by the court. (Id.)

5

On September 11, 2017, Plaintiff filed a notice that he wished to proceed with the claims found

6

cognizable by the court. (ECF No. 10.)

7

Based on Plaintiff’s representations in the September 11, 2017 notice, the magistrate

8

judge issued an order on September 13, 2017, for this case to proceed only against Defendants

9

Scalia and Huerta for use of excessive force in violation of the Eighth Amendment, and against

10

Defendant Scalia for retaliation in violation of the First Amendment, and dismissing all

11

remaining claims and defendants. (ECF No. 11.) In the order, the magistrate judge dismissed

12

Defendants Lieutenant A. Ruiz, Sergeant A. Randolph, and five Doe Defendants from this

13

action, for Plaintiff’s failure to state any claims against them. (Id.) The magistrate judge also

14

dismissed Plaintiff’s claims for failure to protect him and inadequate medical care, for

15

Plaintiff’s failure to state a claim. (Id.)1

16

As described below, in light of Ninth Circuit authority, this court is recommending that

17

the assigned district judge dismiss Defendants Lieutenant A. Ruiz, Sergeant A. Randolph, and

18

five Doe Defendants from this action, and dismiss Plaintiff’s claims for failure to protect him

19

and inadequate medical care from this action, for failure to state a claim under § 1983,

20

consistent with the September 13, 2017, order by the magistrate judge.

21

II.

WILLIAMS V. KING

22

On November 9, 2017, the United States Court of Appeals for the Ninth Circuit held

23

that a magistrate judge lacked jurisdiction to dismiss a prisoner’s case for failure to state a

24

claim at the screening stage where the Plaintiff had consented to magistrate judge jurisdiction

25

and Defendants had not yet been served. Williams v. King, 875 F.3d 500 (9th Cir. 2017).

26
27
28

1

Subsequently, Defendants Scalia and Huerta were served with process and on December 1, 2017,
appeared in this action. (ECF No. 17.)
2

1

Specifically, the Ninth Circuit held that “28 U.S.C. § 636(c)(1) requires the consent of all

2

plaintiffs and defendants named in the complaint—irrespective of service of process—before

3

jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court

4

would otherwise hear.” Id. at 501.

5

Here, Defendants were not served at the time the court issued its order dismissing

6

claims and defendants, and therefore had not appeared or consented to magistrate judge

7

jurisdiction. Accordingly, the magistrate judge lacked jurisdiction to dismiss Plaintiff’s claims

8

and defendants based solely on Plaintiff’s consent.

9

In light of the holding in Williams, this court will recommend to the assigned district

10

judge that he dismiss the claims and defendants previously dismissed by this court, for the

11

reasons provided in the court’s September 13, 2017, order.

12

III.

CONCLUSION AND RECOMMENDATIONS

13

The court finds that this case should proceed only against Defendants Scalia and Huerta

14

for use of excessive force in violation of the Eighth Amendment, and against Defendant Scalia

15

for retaliation in violation of the First Amendment, and all other claims and defendants should

16

be dismissed based on Plaintiff’s failure to state a claim, for the reasons provided in the court’s

17

September 13, 2017, order.

18

Therefore, for the reasons set forth above, IT IS HEREBY RECOMMENDED that:

19

1.

In light of the holding in Williams, the district judge dismiss the claims and

20

defendants previously dismissed by the magistrate judge on September 13,

21

2017;

22

2.

This case now proceed with Plaintiff’s Complaint, filed on January 30, 2017,

23

against Defendants Scalia and Huerta for use of excessive force in violation of

24

the Eighth Amendment, and against Defendant Scalia for retaliation in violation

25

of the First Amendment;

26

3.

All other claims and defendants be dismissed from this action for failure to state

27

a claim under § 1983 upon which relief may be granted, for the reasons provided

28

in the magistrate judge’s September 13, 2017, order;
3

1

4.

Defendants Lieutenant A. Ruiz, Sergeant A. Randolph, and five Doe Defendants

2

be dismissed from this action for Plaintiff’s failure to state any claims under §

3

1983 against them upon which relief may be granted; and

4

5.

Plaintiff’s claims for failure to protect him and inadequate medical care be
dismissed from this action based on Plaintiff’s failure to state a claim.

5
6

These findings and recommendations are submitted to the United States District Judge

7

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

8

(14) days of the date of service of these findings and recommendations, any party may file

9

written objections with the court.

Such a document should be captioned “Objections to

10

Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be

11

served and filed within seven (7) days after service of the objections. The parties are advised

12

that failure to file objections within the specified time may result in the waiver of rights on

13

appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,

14

923 F.2d 1391, 1394 (9th Cir. 1991)).

15
16
17
18

IT IS SO ORDERED.
Dated:

December 15, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
4