(PC) Deere v. Lizarraga ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARTHUER RAY DEERE, Sr., No. 2:16-cv-1694 MCE DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JOE LIZARRAGA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. On April 8, 2016, he filed this civil rights 18 action under 42 U.S.C. § 1983. In a screening order filed March 28, 2017, this court dismissed 19 plaintiff’s claims against the Prison Law Office. (ECF No. 12.) This case then proceeded on 20 plaintiff’s claims in his second amended complaint against defendant Lizarraga. (See ECF No. 21 19.) On August 19, 2019, the court granted defendant’s motion for summary judgment. (ECF 22 No. 74.) 23 Plaintiff filed an appeal. The Court of Appeals vacated this court’s order dismissing 24 plaintiff’s claims against the Prison Law Office based on its decision in Williams v. King, 875 25 F.3d 500, 503-04 (9th Cir. 2017). (ECF No. 79.) 26 In Williams, issued November 9, 2017, the Court of Appeals held that a magistrate judge 27 lacked jurisdiction to dismiss a prisoner’s case for failure to state a claim at the screening stage 28 where the plaintiff had consented to magistrate judge jurisdiction and defendants had not yet been 1 | served. Williams, 875 F.3d at 503-04. Specifically, the Ninth Circuit held that “28 U.S.C. § 2 | 636(c)(1) requires the consent of all plaintiffs and defendants named in the complaint — 3 | irrespective of service of process—before jurisdiction may vest in a magistrate judge to hear and 4 | decidea civil case that a district court would otherwise hear.” Id. at 501. 5 Here, defendants were not served at the time this court issued its order dismissing 6 | plaintiff’s claims against the Prison Law Office. Accordingly, the undersigned magistrate judge 7 | lacked jurisdiction to make that determination based solely on plaintiff’s consent. 8 In light of the holding in Williams and the Court of Appeals’ remand, this court will 9 | recommend to the assigned district judge that he dismiss plaintiff’s claims against the Prison Law 10 || Office for the reasons set forth in the March 28, 2017 order. 11 Accordingly, IT IS HEREBY RECOMMENDED that: 12 1. Plaintiff’s claims against the Prison Law Office be dismissed without leave to amend; 13 || and 14 2. Judgment be entered pursuant to the August 19, 2019 order. 15 These findings and recommendations will be submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 17 | being served with these findings and recommendations, either party may file written objections 18 | withthe court. The document should be captioned “Objections to Magistrate Judge's Findings 19 | and Recommendations.” The parties are advised that failure to file objections within the specified 20 || time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 21 | F.2d 1153 (9th Cir. 1991). 22 || Dated: November 5, 2020 23 24 5 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 26 || DLB:9/DLB1/prisoner-civil rights/deer1694.remand fr 27 28