(PC) Hutchins, Jr. v. Lockyer, et al., No. 1:2015cv01537 - Document 39 (E.D. Cal. 2017)

Court Description: ORDER ADOPTING 36 FINDINGS AND RECOMMENDATIONS and DISMISSING Certain Claims, signed by District Judge Dale A. Drozd on 12/8/17. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CLIFTON HUTCHINS, JR., 12 13 14 15 No. 1:15-cv-01537-DAD-MJS Plaintiff, v. BILL LOCKYER, et al., Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS (Doc. No. 36) 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Defendant Johal has appeared in this 19 action, while defendants Klang, Yousseff, Nurse Does 1–2, and Does 3–6 have not. 20 On December 19, 2016, the assigned magistrate judge screened plaintiff’s complaint and 21 dismissed all claims against defendants Klang, Yousseff, Nurse Does 1–2, and Does 3–6 in 22 plaintiff’s second amended complaint with prejudice. (Doc. No 26.) Plaintiff voluntarily 23 declined to pursue his claims against defendants Lockyer, Lewis, Ramos, Sheheta, Patel, 24 Katavich, and Does 7–10 in the second amended complaint after his original complaint and first 25 amended complaint were dismissed with leave to amend. (Doc. Nos. 14, 20.) 26 The case proceeded on two of plaintiff’s claims against defendant Johal. (Doc. Nos. 21, 27 26.) Defendant Johal filed a motion to dismiss on March 10, 2017. (Doc. No. 30.) On August 28 22, 2017, the magistrate judge issued findings and recommendations recommending that 1 1 defendant’s motion to dismiss be denied. (Doc. No. 34.) Those findings and recommendations 2 were adopted by the undersigned. (Doc. No. 37.) 3 On November 22, 2017, the magistrate judge reinstated plaintiff’s previously dismissed 4 claims, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 5 2017), had held that a magistrate judge does not have jurisdiction to dismiss claims with prejudice 6 in screening prisoner complaints even if the plaintiff has consented to magistrate judge 7 jurisdiction, as plaintiff had here. (Doc. No. 36.) Concurrently, the magistrate judge issued 8 findings and recommendations recommending that the undersigned dismiss those reinstated 9 claims. (Id.) Plaintiff was given fourteen days to file his objections to those findings and 10 recommendations. Plaintiff did not file any objections, and the time in which to do so has now 11 passed. 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 13 undersigned has conducted a de novo review of plaintiff’s case. The undersigned concludes the 14 findings and recommendations are supported by the record and by proper analysis. 15 16 17 18 19 Accordingly, 1. The findings and recommendations issued on November 22, 2017 (Doc. No. 36) are adopted in full; 2. Plaintiff’s claims against defendants Klang, Yousseff, Nurse Does 1–2, and Does 3–6 are dismissed; 20 3. Plaintiff’s first claim against defendant Johal for medical indifference is dismissed; and 21 4. This action proceeds solely on plaintiff’s second medical indifference claim and 22 retaliation claim against defendant Johal as alleged in the second amended complaint, 23 those claims having been found to be cognizable in the magistrate judge’s prior screening 24 orders (Doc. Nos. 20, 26). 25 26 IT IS SO ORDERED. Dated: December 8, 2017 UNITED STATES DISTRICT JUDGE 27 28 2

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