Hollis v. Bal et al
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/14/2018 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED that plaintiff's 15 motion for relief from judgment be granted and the 5/20/2014 order and judgment be vacated, and the Clerk be directed to reopen the case; and plaintiff's 3 motion to proceed ifp be granted. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MARVIN GLENN HOLLIS,
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Plaintiff,
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No. 2:13-cv-2145-EFB P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
J. BAL, et al.,
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Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. Shortly after filing his complaint, plaintiff filed a motion to proceed in forma
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pauperis and consented to the jurisdiction of a magistrate judge. ECF Nos. 3 & 4. On May 20,
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2014, before any defendant was served, the undersigned denied plaintiff’s application to proceed
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in forma pauperis pursuant to the “three-strikes” provision of 28 U.S.C. § 1915(g) and dismissed
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the case without prejudice to re-filing upon prepayment of the $400 filing fee. ECF No. 6.
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Plaintiff now moves for reconsideration of that order and seeks relief from judgment pursuant to
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Rule 60(b) of the Federal Rules of Civil Procedure, citing Williams v. King, 875 F.3d 500 (9th
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Cir. 2017), which held that all parties, including unserved defendants, must consent in order for
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jurisdiction to vest with the magistrate judge pursuant to 28 U.S.C. § 636(c)(1). ECF No. 15.
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Plaintiff’s motion should be granted, as follows.
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First, given that all named parties did not consent to proceed before the magistrate judge,
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the May 20, 2014 order and judgment are void and plaintiff’s motion for relief from judgment
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should be granted. See Fed. R. Civ. P. 60(b)(4).
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Second, and upon reconsideration, plaintiff’s application to proceed in forma pauperis
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should be granted because plaintiff made plausible allegations that he was “under imminent
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danger of serious physical injury” at the time he lodged his complaint, including that the denial of
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accommodations for his various medical conditions and disabilities subjected him to “daily
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increased pain in his feet, back, and shoulders.” ECF No. 1 at 22; 28 U.S.C. § 1915(g); see also
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Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (an exception to the three-strikes rule
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exists “if the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of
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serious physical injury’ at the time of filing”).
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly
assign a United States District Judge to this action.
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Further, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion for relief from judgment (ECF No. 15) be granted and the May 20,
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2014 order (ECF No. 6) and judgment (ECF No. 7) be vacated and the Clerk directed
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to reopen the case.
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2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 3) be granted.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be served and filed within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: March 14, 2018.
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