Blackshire v. Sacramento County Sheriff

Filing 19

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/1/2018 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED plaintiff's 18 motion for reconsideration be granted and the Clerk be directed to vacate the 9/13/2017 order and judgment, and reopen the case; the Clerk be directed to re-serve plaintiff a copy of the court's 8/2/2017 screening order; plaintiff be granted 30 days from any order adopting these findings and recommendations to file an amended complaint. 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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PATRICK BLACKSHIRE,

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Plaintiff,

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v.

No. 2:16-cv-2537-EFB P

ORDER AND FINDINGS AND
RECOMMENDATIONS

SACRAMENTO COUNTY SHERIFF,
Defendant.

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Plaintiff is a former county jail inmate proceeding without counsel in an action brought

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under 42 U.S.C. § 1983. Shortly after filing his complaint, plaintiff consented to the jurisdiction

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of a magistrate judge. ECF No. 6. On September 13, 2017, after plaintiff failed to comply with

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the court’s August 2, 2017 screening order dismissing the complaint with leave to amend, the

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magistrate judge dismissed the case without prejudice. ECF No. 16. Plaintiff now moves for

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reconsideration, stating that he was unable to respond to the court’s screening order “because of

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incarceration and address changes.” ECF No. 18.

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In light of the recent decision in Williams v. King, 875 F.3d 500 (9th Cir. 2017), plaintiff’s

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motion for reconsideration should be granted. Williams holds that all parties, including unserved

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defendants, must consent in order for jurisdiction to vest with the magistrate judge pursuant to 28

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U.S.C. § 636(c)(1). ECF No. 15. Dismissal in this case was therefore improper because the

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defendant, against whom plaintiff failed to state a claim and who was not served, did not consent
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to the jurisdiction of the magistrate judge. The court will therefore recommend that this case be

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reopened and that plaintiff be permitted another opportunity to comply with the court’s August 2,

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2017 screening order.

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Accordingly, IT IS HEREBY ORDERED that the Clerk 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 reconsideration (ECF No. 18) be granted and the Clerk be

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directed to vacate the September 13, 2017 order (ECF No. 16) and judgment (ECF No.

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17) and reopen the case.

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2. The Clerk be directed to re-serve plaintiff with a copy of the court’s August 2, 2017
screening order (ECF No. 15).
3. Plaintiff be granted 30 days from any order adopting these findings and

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recommendations to file an amended complaint curing the deficiencies identified in

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the August 2, 2017 screening order and warned that failure to do so may result in a

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recommendation of dismissal.

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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: May 1, 2018.

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