Deere v. Unknown CDC - Employees Prison Law Offices

Filing 80

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/05/20 RECOMMENDING that plaintiff's claims against the Prison Law Office be dismissed without leave to amend; and judgment be entered pursuant to the 8/19/19 order. Referred to Judge Morrison C. England Jr. Objections due within 30 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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ARTHUER RAY DEERE, Sr.,

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Plaintiff,

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No. 2:16-cv-1694 MCE DB P

v.

FINDINGS AND RECOMMENDATIONS

JOE LIZARRAGA, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se. On April 8, 2016, he filed this civil rights

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action under 42 U.S.C. § 1983. In a screening order filed March 28, 2017, this court dismissed

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plaintiff’s claims against the Prison Law Office. (ECF No. 12.) This case then proceeded on

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plaintiff’s claims in his second amended complaint against defendant Lizarraga. (See ECF No.

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19.) On August 19, 2019, the court granted defendant’s motion for summary judgment. (ECF

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No. 74.)

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Plaintiff filed an appeal. The Court of Appeals vacated this court’s order dismissing

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plaintiff’s claims against the Prison Law Office based on its decision in Williams v. King, 875

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F.3d 500, 503-04 (9th Cir. 2017). (ECF No. 79.)

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In Williams, issued November 9, 2017, the Court of Appeals held that a magistrate judge

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lacked jurisdiction to dismiss a prisoner’s case for failure to state a claim at the screening stage

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where the plaintiff had consented to magistrate judge jurisdiction and defendants had not yet been
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served. Williams, 875 F.3d at 503-04. Specifically, the Ninth Circuit held that “28 U.S.C. §

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636(c)(1) requires the consent of all plaintiffs and defendants named in the complaint —

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irrespective of service of process—before jurisdiction may vest in a magistrate judge to hear and

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decide a civil case that a district court would otherwise hear.” Id. at 501.

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Here, defendants were not served at the time this court issued its order dismissing

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plaintiff’s claims against the Prison Law Office. Accordingly, the undersigned magistrate judge

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lacked jurisdiction to make that determination based solely on plaintiff’s consent.

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In light of the holding in Williams and the Court of Appeals’ remand, this court will

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recommend to the assigned district judge that he dismiss plaintiff’s claims against the Prison Law

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Office for the reasons set forth in the March 28, 2017 order.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s claims against the Prison Law Office be dismissed without leave to amend;

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and

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2. Judgment be entered pursuant to the August 19, 2019 order.

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These findings and recommendations will be 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 thirty days after

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being served with these findings and recommendations, either party may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge's Findings

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and Recommendations.” The parties are advised that failure to file objections within the specified

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time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: November 5, 2020

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DLB:9/DLB1/prisoner-civil rights/deer1694.remand fr

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