Opinion
No. 1:15-cv-00768-DAD-MJS
03-19-2018
LAKEITH L. MCCOY, Plaintiffs, v. A. HOLGUIN, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING NONCOGNIZABLE CLAIM
(Doc. No. 93.)
Plaintiff Lakeith McCoy is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On November 19, 2015, the assigned magistrate judge screened plaintiff's second amended complaint (Doc. No. 15) and found that plaintiff stated cognizable Eighth Amendment excessive force claims against defendants Casillas, Holguin, Moore, King, Lomas, Gonzales, A. Martinez, Delgado, Barron, Montanez, Mayfield, and Moreno, and cognizable failure to intervene claims against defendants Arellano, Deluna, C. Martinez, Bennet, Holland, Kilmer, Lomas, and Santa Maria. (Doc. No. 17.) However, the magistrate judge dismissed plaintiff's claim for injunctive relief.
On February 23, 2017, the assigned magistrate judge re-screened plaintiff's second amended complaint, recognizing that a recent Ninth Circuit opinion, Williams v. King, 875 F.3d 500 (9th Cir. 2017), had held that a magistrate judge does not have jurisdiction to dismiss claims with prejudice in screening prisoner complaints even if a plaintiff has consented to magistrate judge jurisdiction, as plaintiff did here, where all defendants, including those not yet appearing in the action, have not consented to magistrate judge jurisdiction. (Doc. No. 93.) Concurrently, the magistrate judge issued findings and recommendations recommending that plaintiff's claims previously found to be non-cognizable in the initial screening order be dismissed. (Id.) The parties were given fourteen days to file objections to those findings and recommendations. (Id.) The parties did not file any objections, and the time in which to do so has now expired.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the undersigned has conducted a de novo review of the case. The undersigned concludes the findings and recommendations are supported by the record and by proper analysis.
Accordingly:
1. The findings and recommendations issued on February 23, 2018 (Doc. No. 93) are adopted in full;IT IS SO ORDERED.
2. Plaintiff's claim for injunctive relief is dismissed with prejudice;
3. This action proceeds on plaintiff's Eighth Amendment excessive force claims against defendants Casillas, Holguin, Moore, King, Lomas, Gonzales, A. Martinez, Delgado, Barron, Montanez, Mayfield and Moreno and his failure to intervene claims against defendants Arellano, Deluna, C. Martinez, Bennett, Holland, Kilmer, Lomas and Santa Marias.
Dated: March 19 , 2018
/s/_________
UNITED STATES DISTRICT JUDGE