Cole v. Reames et al.

Filing 20

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/7/2018 ORDERING the Clerk to randomly assign a district court judge to this case and RECOMMENDING plaintiff's 8 first amended complaint be dismissed for failure to state a claim upon which relief can be granted. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER L. COLE,

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Plaintiff,

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No. 2:16-cv-02570 CKD P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

D. REAMES, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to

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42 U.S.C. § 1983. On March 1, 2017 the court screened plaintiff’s amended complaint and found

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that it failed to cure the defects of the original complaint as discussed in the December 15, 2016

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screening order, or to state a cognizable claim against any defendant. Because it appeared that

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another round of amendment would be futile, the court dismissed the action for failing to state a

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claim.1
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a

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district court judge to this case.

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The dismissal order was based on plaintiff’s consent to magistrate judge jurisdiction which was
filed on November 30, 2016. See 28 U.S.C. § 636(c). However, the Ninth Circuit Court of
Appeal reversed this court’s dismissal pursuant to Williams v. King, 875 F.3d 500, 503-04 (9th
Cir. 2017) (holding that magistrate judges do not have the authority to dismiss an action unless all
named defendants have also consented regardless of whether they have appeared in the action,
been served with process, or been screened in pursuant to 28 U.S.C. § 1915A(a)).
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IT IS HEREBY RECOMMENDED that plaintiff’s first amended complaint be dismissed
for failing to state a claim upon which relief can be granted.

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

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 7, 2018

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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