Walker v. Peters et al

Filing 69

ORDER: I adopt the F&R 60 in its entirety and further dismiss Plaintiff's negligence claim for lack of subject matter jurisdiction. Accordingly, (i) Defendants' Motion for Summary Judgment 33 is GRANTED and (ii) Plaintiff's Motion for Preliminary Injunction 58 is DENIED. Signed on 5/9/2019 by Judge Ann L. Aiken. (Mailed to Pro Se party on 5/9/2019.) (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRANDON LEE WALKER,

Case No. 2:17-cv-01373-MK

ORDER
Plaintiff,

v.
COLETTE PETERS, Director, et al.,
Defendants.

AIKEN, District Judge:
Magistrate Judge Mustafa Kasubhai filed his Findings and Recommendation
("F&R") (doc. 60) recommending that (i) Defendants' Motion for Summary Judgment
(doc. 33) be granted and (ii) Plaintiffs Motion for Preliminary Injunction (doc. 58) be
denied. Plaintiff then timely filed objections to the F&R (doc. 65). The matter is now
before me. See 28 U.S.C. § 636(b)(l)(B) and Fed. R. Civ. P. 72(b). When either party
objects to any portion of a magistrate judge's F&R, the district court must make a de
nova determination of that portion of the magistrate judge's report. See 28 U.S.C. §

Page 1 - ORDER

636(b)(l); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d
1309, 1313 (9th Cir. 1981), cert denied, 455 U.S. 920 (1982).
Based on my review of the F&R and the documents in the case, I find no error
m Judge Kasubhai's F&R and Plaintiffs objections do not undermine Judge
Kasubhai's analysis.

However, while Defendants had also moved for summary

judgement on Plaintiffs' state law negligence claim, Judge Kasubhai failed to directly
address that issue in his F&R so I will address it here.
Plaintiffs negligence claim is dismissed because Plaintiffs constitutional claim
has been dismissed. This Court's jurisdiction over Plaintiffs case was based on the
existence of a federal question in the form of Plaintiffs Eighth Amendment claim.
Judge Kasubhai recommended that Plaintiffs constitutional claim be dismissed and
upon review of his F&R I agree. Federal Civil Procedure Rule 12(h)(3) provides that
"[i]f the court determines at anytime that it lacks subject-matter jurisdiction, the
court must dismiss the action." Fed. R. Civ. P. 12(h)(3); see also Cal. Diversified

Promotions, Inc. v. Musich, 505 F.2d 278, 280 (9th Cir. 1974) ("It has long been held
that a judge can dismiss sua sponte for lack of jurisdiction"). And district courts
"generally should decline to exercise supplemental jurisdiction over state-law claims
after the federal claims have been dismissed before trial." Schultz v. Sundberg, 759
F.2d 714, 718 (9th Cir. 1985); see also Acri v. VarianAssocs., Inc., 114 F.3d 999, 1000
(9th Cir. 1997). Thus, I adopt the F&R (doc. 60) in its entirety and further dismiss
Plaintiffs' negligence claim for lack of subject matter jurisdiction. Accordingly, (i)

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Defendants' Motion for Summary Judgment (doc. 33) is GRANTED and (ii) Plaintiffs
Motion for Preliminary Injunction (doc. 58) is DENIED.
IT IS SO ORDERED.
Dated this

f!a~

of May, 2019.

Ann Aiken
United States District Judge

Page 3 - ORDER