Opinion
No. 2:17-cv-1205 KJM CKD P
01-02-2019
NICHOLAS PATRICK, Plaintiff, v. PIERCE, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
On August 17, 2018, the undersigned screened the complaint and found that some of plaintiff's allegations stated a claim for relief while others were dismissed with leave to amend. (ECF No. 12.) Plaintiff was given the option of amending the complaint or proceeding on his viable claims, and advised that a decision to proceed without amendment would constitute a voluntary dismissal of some of the claims and defendants. (Id. at 13, 15.) When he failed to elect either option, plaintiff was given an additional opportunity to make a choice as to how he wanted to proceed and warned that failure to notify the court of his decision would be construed as a decision to proceed on the complaint as screened. (ECF No. 15.) After plaintiff once again failed to notify the court as to how he wanted to proceed, his silence was deemed a decision to proceed on the screened complaint and service was ordered on defendants Huisar and Sanchez. (ECF No. 16.) The claims and defendants that had previously been dismissed with leave to amend were considered voluntarily dismissed without prejudice. (Id. at 2.)
Defendants Huisar and Sanchez have waived service of the complaint and requested that, in light of the Ninth Circuit's decision in Williams v. King, 875 F.3d 500 (9th Cir. 2017) (no magistrate judge jurisdiction based on plaintiff's consent alone), the screening order be treated as findings and recommendations and submitted for a ruling by the District Judge. (ECF No. 21.) Given the circumstances of the dismissals, it is not clear that such review is necessary. However, in an abundance of caution, the request will be granted. The dismissals of defendants Pierce, Crozier, Quick, Hernandez, Kaplain, Altshuler, Perez, and Chudy and the failure to protect claim against defendant Sanchez are vacated, and for the reasons outlined in the August 17, 2018 screening order (ECF No. 12) and October 19, 2018 order directing service (ECF No. 16), the undersigned will recommend to the assigned District Judge that the defendants and claims be dismissed without prejudice.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' request for the submission of findings and recommendations to the District Judge (ECF No. 21) is granted.
2. The dismissals of defendants Pierce, Crozier, Quick, Hernandez, Kaplain, Altshuler, Perez, and Chudy and the failure to protect claim against defendant Sanchez (ECF Nos. 12, 16) are vacated.
IT IS FURTHER RECOMMENDED that defendants Pierce, Crozier, Quick, Hernandez, Kaplain, Altshuler, Perez, and Chudy and the failure to protect claim against defendant Sanchez be dismissed without prejudice for the reasons set forth in the August 17, 2018 screening order (ECF No. 12) and October 19, 2018 order directing service (ECF No. 16).
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED. Dated: January 2, 2019
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 13:patr1205.convert.screening