(PC) Freeman v. Kernan ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVON LEON FREEMAN, No. 2:17-cv-02233-TLN-AC 12 Plaintiff, 13 v. ORDER 14 SCOTT KERNAN, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 15, 2019, the magistrate judge filed findings and recommendations herein which 21 were served on Plaintiff and which contained notice to Plaintiff that any objections to the findings 22 and recommendations were to be filed within fourteen days. (ECF No. 9.) Plaintiff has filed 23 objections to the findings and recommendations. (ECF No. 10.) 24 Plaintiff objects to the magistrate judge’s finding that he has three strikes under 28 U.S.C. 25 § 1915(g) on the grounds that a court within this District previously found in Freeman v. Lynch, 26 No. 2:16-cv-0705 MCE CMK, 2018 WL 3388611, (E.D. Cal. July 12, 2018, adopted Sept. 17, 27 20181) [hereinafter “Freeman I”], that the cases relied upon were not strikes because they were 28 1 2018 WL 4409131, 2018 U.S. Dist. LEXIS 158329. 1 dismissed by a magistrate judge when only Plaintiff had consented to magistrate judge 2 jurisdiction. (ECF No. 10.) The decision in Freeman I was based upon the Ninth Circuit’s 3 opinion in Williams v. King, 875 F.3d 500, 504–05 (9th Cir. 2017), which held that a magistrate 4 judge does not have authority to dismiss a case unless all parties, served or not, have consented to 5 magistrate judge jurisdiction. Freeman I, 2018 WL 3388611, at *1, 2018 U.S. Dist. LEXIS 6 116489, at *2–3. However, Freeman I was decided before the Ninth Circuit issued its opinion in 7 Hoffmann v. Pulido, 928 F.3d 1147 (9th Cir. 2019). In Hoffmann, the Ninth Circuit held that a 8 pre-Williams dismissal by a magistrate judge in a case where a plaintiff had consented, and the 9 defendants had not yet been served, can count as strikes under 28 U.S.C. § 1915(g).2 928 F.3d at 10 1150–51. In light of the decision in Hoffmann, the three cases identified by the magistrate judge 11 in this case are eligible to be counted as strikes under § 1915(g). 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 13 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 14 Court finds the findings and recommendations to be supported by the record and by proper 15 analysis. 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. The findings and recommendations filed July 15, 2019 (ECF No. 9), are adopted in 18 full; and 19 2. Plaintiff is ordered to pay the entire $400.00 in required fees within thirty days or face 20 dismissal of the case. 21 Dated: August 29, 2019 22 23 24 25 26 27 2 The magistrate judge’s findings and recommendations in Freeman I explicitly noted that “the Ninth Circuit has yet to address the impact of the failure to appeal a final order issued by a Magistrate Judge in the absence of 28 consent by all parties on it’s [sic] holding in Williams.” 2018 WL 3388611, at *1 n.2.