Smith v. Martinez, et al.

Filing 24

ORDER DENYING AS MOOT 22 Defendant's Motion for Review of Findings and Recommendations signed by Magistrate Judge Michael J. Seng on 1/19/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL D. SMITH,

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CASE No. 1: 17-cv-01092-AWI-MJS (PC)
ORDER DENYING AS MOOT
DEFENDANT’S MOTION FOR REVIEW
OF FINDINGS AND
RECOMMENDATIONS

Plaintiff,
v.
MARTINEZ, et al.,

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(ECF NO. 22)

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. This matter proceeds on Plaintiff’s

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First Amendment retaliation claim against Defendant Martinez.

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On November 22, 2017, the undersigned screened Plaintiff’s complaint and made

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findings and recommendations that the action proceed on a First Amendment retaliation

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claim against Defendant Martinez, but that all other claims and defendants be dismissed.

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(ECF No. 16.) Simultaneously, the Court ordered Plaintiff to submit documents to initiate

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service

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recommendations were pending, Defendant Martinez was served and he filed the instant

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request, seeking review of the findings and recommendations by the district judge. (ECF

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No. 22.)

upon

Defendant

Martinez.

(ECF

No.

17.)

While

the

findings

and

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Defendant’s request is not well received. Citing Williams v. King, 875 F.3d 500

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(9th Cir. 2017). Defendant contends that the undersigned does not have jurisdiction to

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dismiss

claims

absent Defendant’s

consent and

that the

Magistrate

Judge’s

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authorization of proceedings against Defendant Martinez instead must be presented to

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the District Judge via findings and recommendations.

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This proposition is legally correct, but it does not reflect what occurred in this

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case. Despite Defendant’s contention that the undersigned “unilaterally dismiss[ed]

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certain claims and defendants,” the undersigned did not dispose of any claims. Instead,

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the undersigned issued a recommendation to dismiss the claims and submitted that

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recommendation to the district judge. The findings and recommendations were not

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dispositive of any claim and therefore not contrary to Williams. Nothing in Williams

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affects a Magistrate Judge’s authority to issue non-dispositive orders. Accordingly, the

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order requiring service of the complaint on Defendant was not contrary to Williams.1

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In any event, the findings and recommendations have since been adopted by the

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district judge. Accordingly, Defendant’s motion is moot and on that basis it is HEREBY

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DENIED.

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IT IS SO ORDERED.

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Dated:

January 19, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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Had Defendant simply wished to delay responding to the complaint until the status of the pleadings was
resolved, the proper course would have been to request an extension of time.

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