McCrea v. Hubbard et al
Filing
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ORDER ADOPTING 29 FINDINGS AND RECOMMENDATIONS and Dismissing Certain Claims signed by District Judge Dale A. Drozd on 01/08/2018. (Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TERRENCE MCCREA,
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Plaintiff,
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v.
J. HUBBARD, et al.,
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No. 1:17-cv-00247-DAD-MJS
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DISMISSING
CERTAIN CLAIMS
(Doc. No. 29)
Defendants.
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights
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action filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff consented to the jurisdiction of
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a United States Magistrate Judge over the action for all purposes pursuant to 28 U.S.C. § 636(c).
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(Doc. No. 6.) Defendant Denman has not consented to magistrate judge jurisdiction.
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On June 27, 2017, the assigned magistrate judge issued a screening order directing
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plaintiff to either file an amended complaint or a notice of willingness to proceed only on his
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claim against defendant Denman which was found to be cognizable. (Doc. No. 8.) On July 17,
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2017, plaintiff filed a first amended complaint. (Doc. No. 9.) On August 23, 2017, the magistrate
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judge screened plaintiff’s first amended complaint and found that it stated only a cognizable
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claim against defendant Denman. (Doc. No. 10.) The magistrate judge found the claim against
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defendant Hubbard to be non-cognizable and dismissed that claim by order. (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 with
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process, before jurisdiction may vest in a magistrate judge to dispose of a civil case. Williams v.
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King, 875 F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge lacked jurisdiction to
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dismiss the above-described claims by way of the August 23, 2017 order. Therefore, on
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December 12, 2017, the magistrate judge issued findings and recommendations recommending
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that this action proceed only against defendant Denman and that defendant Hubbard be dismissed
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for failure to state a cognizable claim for relief. The findings and recommendations were served
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on the parties and contained notice that objections were to be filed within fourteen days. Plaintiff
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filed a response indicating his “consent” to the magistrate judge’s findings and recommendations.
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(Doc. No. 31.)
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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 plaintiff’s case. In his initial complaint, plaintiff
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alleges that defendant Hubbard intentionally jerked back plaintiff’s head and ordered him to look
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up at the sun. In evaluating plaintiff’s complaint, the magistrate judge concluded that there were
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insufficient facts alleged to establish an excessive force claim and directed plaintiff to include
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more facts “supporting a claim…that Hubbard had no penological justification for ordering
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plaintiff to put his head back and look at the sun and in physically acting to enforce that order and
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that the force used was greater than reasonably necessary to enforce the order.” (Doc. No. 8 at 6.)
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Plaintiff amended his complaint but did not add such facts. (Doc. No. 9.) As such, the
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undersigned concludes the findings and recommendations are supported by the record and by
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proper analysis.
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Accordingly,
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1.
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The findings and recommendations filed on December 12, 2017 (Doc. No. 29) are
adopted in full;
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Plaintiff’s claim against defendant Hubbard is dismissed; and
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This action shall proceed on the plaintiff’s claim against defendant Denman.
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IT IS SO ORDERED.
Dated:
January 8, 2018
UNITED STATES DISTRICT JUDGE
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