McCrea v. Hubbard et al
ORDER Requiring the Parties to Address the Implications of Recent Ninth Circuit Opinion on Defendant's Motion to Revoke In Forma Pauperis Status signed by Magistrate Judge Michael J. Seng on 11/13/2017. Reply Brief due within fourteen (14) days. (Jessen, A)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
Case No. 1:17-cv-00247-MJS
Plaintiff, ORDER REQUIRING THE PARTIES TO
ADDRESS THE IMPLICATIONS OF
RECENT NINTH CIRCUIT OPINION ON
DEFENDANT’S MOTION TO REVOKE
IN FORMA PAUPERIS STATUS
J. HUBBARD, et al.,
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983. On October 18, 2017, Defendant
Denman filed a motion to revoke in forma pauperis (“IFP”) status for Plaintiff on the
grounds that Plaintiff had three or more earlier cases dismissed as frivolous; i.e., three
“strikes” against him. (ECF No. 14.) On November 6, 2017, Plaintiff filed “objections” to
Defendant’s motion. (ECF No. 18.) Defendant’s optional reply brief currently is due by
November 13, 2017.
Review of Defendant’s motion to revoke IFP status reveals that two of the three
cases Defendant cites to as “strikes” were dismissed as frivolous by a Magistrate Judge.
See McCrea v. Adams, ECF No. 12, Case No. 1:09-cv-00850 (E.D. Cal. Dec. 1, 2009);
McCrea v. McComber, ECF No. 12, Case No. 2:15-cv-1605 (E.D. Cal. Dec. 21, 2015).
On November 9, 2017, the Ninth Circuit ruled that 28 U.S.C. § 636(c)(1) requires
the consent of all named plaintiffs and defendants—even those not served with
process—before jurisdiction can vest in a Magistrate Judge to dispose of that case, even
where Plaintiff had consented to Magistrate Judge jurisdiction. King v. Williams, --- F.3d
----, No. 15-15259, 2017 WL 5180205 (9th Cir. Nov. 9, 2017). Accordingly, the Court
held, a Magistrate Judge does not have jurisdiction to dismiss a case with prejudice
during screening even if the plaintiff has consented to Magistrate Judge jurisdiction. Id.
If the Ninth Circuit’s ruling in King is to be given retroactive effect, it would appear
that the Magistrate Judges who dismissed Plaintiff’s cases in 2009 and 2015 did not
have jurisdiction to do so. Thus, it would follow that those cases would no longer be
considered “strikes” for the purposes of the Prison Litigation Reform Act on which
Defendant’s motion to revoke IFP is based. However, as this issue arose after
Defendant’s motion and Plaintiff’s opposition already had been filed, the Court will grant
both parties the opportunity to file supplemental briefs to address the implications of the
Ninth Circuit’s ruling on the pending motion.
Accordingly, IT IS HEREBY ORDERED that Defendant shall have fourteen (14)
days from the date of this Order to file its reply brief and address therein the implications
of the Ninth Circuit’s ruling in King on the motion to revoke IFP. Plaintiff will have
fourteen (14) days after service of Defendant’s reply, to submit a brief addressing the
implications of King on the motion to revoke IFP.
IT IS SO ORDERED.
November 13, 2017
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?