Galicia v. Marsh et al

Filing 73

ORDER Adopting 66 FINDINGS AND RECOMMENDATIONS signed by District Judge Dale A. Drozd on 1/7/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE GALICIA,

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Plaintiff,

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No. 1:16-cv-00011-DAD-SAB

v.

ORDER

T. MARSH, et al.,

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Defendants.

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Plaintiff Jose Galicia is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff consented to magistrate judge jurisdiction on January 25,

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2016. (Doc. No. 6.) Defendants declined magistrate judge jurisdiction on August 30, 2016.

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(Doc. No. 20.)
On May 25, 2016, the magistrate judge screened plaintiff’s first amended complaint and

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found that it stated a cognizable claim against defendants Guzman, Marsh, Weatherford, and

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Jennings for violating plaintiff’s right to due process. (Doc. No. 12.) The magistrate judge

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dismissed all other claims and defendants for failure to state a cognizable claim. (Id.) The

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magistrate judge indicated that jurisdiction existed under 28 U.S.C. § 636(c) to do so by order

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based on the fact that plaintiff had consented to magistrate judge jurisdiction and no other parties

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had yet appeared. (Id.)

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However, on November 9, 2017, the Ninth Circuit Court of Appeals held that 28 U.S.C.

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§ 636(c)(1) requires the consent of all named plaintiffs and defendants, even those not served

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with process, before jurisdiction may vest in a magistrate judge to dispose of a civil case.

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Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017). Accordingly, the magistrate judge did not

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have jurisdiction to dismiss the above-described claims by way of the May 25, 2016 order.

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Therefore, on November 30, 2017, the magistrate judge issued findings and recommendations

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recommending that this action proceed against defendants Guzman, Marsh, Weatherford, and

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Jennings on plaintiff’s due process claim and that all other claims and defendants be dismissed for

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failure to state a cognizable claim for relief. (Doc. No. 66.) The findings and recommendations

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were served on the parties and contained notice that objections were to be filed within fourteen

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days. No objections were filed and the time period in which to do so has expired.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the

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undersigned has conducted a de novo review of the case. The undersigned concludes the findings

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and recommendations issued November 30, 2017 are supported by the record and by proper

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analysis.

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Accordingly,

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1. The November 30, 2017 findings and recommendations (Doc. No. 71) are adopted in full;

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2. This action proceeds against defendants A. Guzman, T. Marsh, K. Weatherford, and M.

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Jennings on plaintiff’s procedural due process claim; and
3. All other claims and defendants are dismissed from the action for failure to state a
cognizable claim for relief.
IT IS SO ORDERED.
Dated:

January 7, 2018
UNITED STATES DISTRICT JUDGE

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