Bontemps v. Lebeck

Filing 12

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/5/2018 ORDERING the Clerk to assign a district judge to this case and RECOMMENDING this case be dismissed without prejudice. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. BONTEMPS, 12 13 14 15 No. 2:17-cv-1190 DB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS J. LEBECK, Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Plaintiff consented to the jurisdiction of a magistrate judge. (ECF No. 5.) On 19 June 16, 2017, the undersigned magistrate judge found plaintiff had accrued three strikes as 20 defined by 28 U.S.C. § 1915(g), denied plaintiff’s motion to proceed in forma pauperis, and 21 ordered plaintiff to pay the filing fee to proceed with this case. (ECF No. 4.) On August 2, 2017, 22 the undersigned ordered this case dismissed without prejudice for plaintiff’s failure to pay the 23 filing fee. (ECF No. 6.) Defendant was not served and has not appeared in this case. 24 On November 9, 2017, the Ninth Circuit Court of Appeals held that a magistrate judge 25 lacked jurisdiction to dismiss a prisoner's case where the plaintiff had consented to magistrate 26 judge jurisdiction and defendants had not yet been served. Williams v. King, 875 F.3d 500 (9th 27 Cir. 2017). Specifically, the Ninth Circuit held that “28 U.S.C. § 636(c)(1) requires the consent 28 of all plaintiffs and defendants named in the complaint—irrespective of service of process— 1 1 before jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district 2 court would otherwise hear.” Id. at 501. 3 Plaintiff filed an appeal of the judgment in this case. On February 28, 2018, the Ninth 4 Circuit Court of Appeals vacated the judgment herein and remanded for further proceedings 5 based on its decision in Williams. (ECF No. 11.) 6 7 8 9 10 Accordingly, the Clerk of the Court IS HEREBY ORDERED to assign a district judge to this case; and For the reasons set forth in this court’s June 16, 2017 and August 2, 2017 orders (ECF Nos. 4, 6), IT IS HEREBY RECOMMENDED that this case be dismissed without prejudice. These findings and recommendations will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, plaintiff may file written objections 13 with the court. The document should be captioned “Objections to Magistrate Judge's Findings 14 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 time may result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 Dated: March 5, 2018 18 19 20 21 DLB:9 DLB1/prisoner-civil rights/ 22 23 24 25 26 27 28 2

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