Tovar v. Cuellar

Filing 17

ORDER RE: REASSIGNMENT FROM A MAGISTRATE JUDGE. Signed by Judge Haywood S. Gilliam, Jr. on 2/12/2018. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 2/12/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID GARCIA TOVAR, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-02865-HSG (PR) ORDER RE: REASSIGNMENT FROM A MAGISTRATE JUDGE v. MARTIN CUELLAR, et al., Defendants. 12 13 On June 21, 2016, plaintiff, who was at the time a prisoner at the Duval County Jail in San 14 Diego, Texas, filed a pro se complaint against government officials from the cities of Austin and 15 Laredo, Texas and from the State of Texas and several Texas counties. The action originally was 16 assigned to Magistrate Judge Sallie Kim, and plaintiff consented to proceed before a magistrate 17 judge. On June 24, 2016, Magistrate Judge Kim issued an order determining that plaintiff’s 18 allegations of wrongdoing did not occur in this judicial district and dismissing the case without 19 prejudice to filing in the proper district(s). See dkt. no. 8. 20 Plaintiff subsequently filed several letters and “statements” appearing to seek 21 reconsideration of the dismissal. On February 6, 2018, Magistrate Judge Kim reopened the case 22 and reassigned it to the undersigned because a new Ninth Circuit decision held that all named 23 parties, including unserved defendants, must consent before a magistrate judge has jurisdiction 24 under 28 U.S.C. § 636(c)(1) to hear and decide a case. See Williams v. King, 875 F.3d 500, 503 25 (9th Cir. 2017) (magistrate judge lacked jurisdiction to dismiss case on initial review because 26 unserved defendants had not consented to proceed before magistrate judge). Under the Williams 27 rule, magistrate judges are unable to take dispositive action on a consent basis if they do not have 28 the consent of unserved defendants. Magistrate judges can, however, submit proposed findings of 1 fact and recommendations for the disposition of many pretrial matters. See 28 U.S.C. § 636 2 (b)(1)(A), (B). In a case in which full consent has not been obtained, and when a magistrate judge 3 submits proposed findings of fact and recommendations for the disposition of a pretrial matter, the 4 parties may serve and file written objections to the proposed findings and recommendations. Id. at 5 § 636(b)(1); see also Fed. R. Civ. P. 72. Usually such objections are due within fourteen days of 6 the magistrate judge’s proposed findings and recommendations. See id. 7 Under the circumstances, the preferable approach is to treat Magistrate Judge Kim’s June 8 24, 2016 Order of Dismissal as findings and recommendations and to give plaintiff an opportunity 9 to file any objections he has to those findings and recommendations. Accordingly, no later than fourteen days from the date of this order, plaintiff may serve and file specific written objections to 11 United States District Court Northern District of California 10 Magistrate Judge Kim’s dismissal order. See generally Fed. R. Civ. P. 72(a) and (b). Plaintiff’s 12 objections must be included in a single document no longer than 20 pages in length. 13 Once the court receives any objections, the court will “determine de novo any part of the 14 magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). If 15 plaintiff files no objection within fourteen days, the Court will deem him to have waived his right 16 to object to the magistrate judge’s findings and recommendations. 17 18 IT IS SO ORDERED. Dated: 2/12/2018 19 20 HAYWOOD S. GILLIAM, JR. United States District Judge 21 22 23 24 25 26 27 28 2

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