Hill v. Swarthout et al

Filing 61

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/17/21 VACATING 9 the dismissal of the due process claims against defendants Swarthout and Cappel for denying plaintiff's disciplinary appeals. Also, RECOMM ENDING that the due process claims against defendants Swarthout and Cappel for denying plaintiff's disciplinary appeals be dismissed without leave to amend for the reasons set forth in the 1/31/17 screening order 9 at 5-6. Referred to Judge Kimberly J. Mueller. Objections due within 14 days.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH HILL,

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No. 2:15-cv-2012 KJM AC P
Plaintiff,

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v.

FINDINGS AND RECOMMENDATIONS

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GARY SWARTHOUT, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. The Ninth Circuit has vacated the September 20, 2020 judgment and

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remanded the case for further proceedings. ECF No. 60. By order filed January 31, 2017, ECF

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No. 9, the undersigned had screened the original complaint and dismissed plaintiff’s due process

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claims against defendants Swarthout and Cappel for denying his disciplinary appeals. Because

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defendants had not consented to magistrate judge jurisdiction, the undersigned was without

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jurisdiction to dismiss the claims. ECF No. 60 (citing Williams v. King, 875 F.3d 500, 503-04

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(9th Cir. 2017).
Accordingly, IT IS HEREBY ORDERED that the dismissal of the due process claims

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against defendants Swarthout and Cappel for denying plaintiff’s disciplinary appeals (ECF No. 9)

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is VACATED.

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IT IS FURTHER RECOMMENDED that the due process claims against defendants

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Swarthout and Cappel for denying plaintiff’s disciplinary appeals be dismissed without leave to

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amend for the reasons set forth in the January 31, 2017 screening order (ECF No. 9 at 5-6).

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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. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 17, 2021.

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