Law v. Austin et al

Filing 32

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/13/19 ORDERING that the Clerk of Court shall randomly assign a district judge to this action and RECOMMENDING that defendants Yee and Austin be dismissed from this case. F&R are submitted to District Judge John A. Mendez. Objections to F&R due within fourteen (14) days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS GILBERT LAW,

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Plaintiff,

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v.

ORDER and

LORI W. AUSTIN, et al.,

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No. 2:17-cv-2060 AC P

FINDINGS AND RECOMMENDATIONS

Defendants.

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

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42 U.S.C. § 1983. Defendants request that a district judge rule on the dismissal of defendants

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Austin and Yee pursuant to Williams v. King, 875 F.3d 500 (9th Cir. 2017). See ECF No. 29.

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For the reasons that follow, the undersigned directs the Clerk of Court to randomly assign a

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district judge to this action and recommends the dismissal of defendants Austin and Yee.

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The gravamen of the case is plaintiff’s allegation that he was sexually assaulted by

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Correctional Officer Li. On initial screening pursuant to 28 U.S.C. § 1915A(a), the undersigned

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found that plaintiff had stated a claim against Li. ECF No. 19 at 4. The only allegation against

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defendant Yee was that he stood outside the closed bathroom door during the assault. The

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undersigned explained in the initial screening order that a failure-to-protect claim against Yee

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required additional factual allegations demonstrating Yee’s knowledge of and disregard for the

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danger to plaintiff’s safety. In other words, plaintiff needed to provide facts demonstrating that

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Yee knew an assault was taking place. ECF No. 19 at 5.

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Defendant Austin was identified in the complaint as the “CEO” of the prison. ECF No. 1

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at 2. The complaint alleged only that she failed to follow a CDCR directive to comply with the

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Prison Rape Elimination Act. ECF No. 1 at 3. The undersigned found on screening that this

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allegation did not support any identifiable claim for relief. ECF No. 6. It was also noted that the

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matter was necessarily unexhausted, because plaintiff alleged failure to comply with a policy that

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had been announced only two weeks before the complaint was filed. Id.

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Plaintiff was given a choice between (1) dismissing these and other defendants and

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proceeding immediately against Li, or (2) filing a First Amended Complaint (FAC) which

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attempted to state facts that could support claims against Yee, Austin, et al. Id. at 6-7. Plaintiff

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filed an FAC which made no charging allegations at all against either Yee or Austin. ECF No.

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23. Because an amended complaint supersedes the original, Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967), it appeared that plaintiff had abandoned his putative claims against these defendants.

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Accordingly, the undersigned directed the Clerk to terminate Yee and Austin. ECF No. 24 at 2.

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Defendant now seeks district court review of the “dismissal” of Yee and Austin. In

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Williams, supra, the Ninth Circuit clarified that all parties, including any unserved defendants,

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must consent for jurisdiction to vest in the magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

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See 875 F.3d at 503-04. None of the named defendants so consented in this case. As a result, a

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district judge must determine whether any defendants should be dismissed from this action.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a
district judge to this action.
Additionally, for the reasons set forth above and explained in the undersigned’s prior

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screening orders, IT IS HEREBY RECOMMENDED that defendants Yee and Austin be

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dismissed from this case.

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

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days 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.” The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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

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DATED: November 13, 2019

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