Rodriguez v. Beard

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On March 22, 2017, the court granted defendants' summary judgment motion and judgment was entered. (ECF Nos. 133, 134.) Plaintiff appealed the judgment to the Ninth Circuit Court of Appeals. (ECF No. 137.)

         On April 22, 2019, pursuant to Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017), the Ninth Circuit Court of Appeals reversed and remanded this action on the grounds that the undersigned dismissed certain claims without consent from all parties. (ECF No. 140.) In Williams v. King, the Ninth Circuit ruled that 28 U.S.C. § 636(c)(1) requires the consent of all parties named in a civil case before a Magistrate Judge's jurisdiction vests for dispositive purposes. 875 F.3d at 503-04.

         In accordance with the Ninth Circuit's April 22, 2019 order, on May 17, 2019, the undersigned recommended dismissal of those claims previously dismissed by the undersigned without the consent of all parties. (ECF No. 141.)

         At the time the undersigned issued the May 17, 2019 findings and recommendations, the Ninth Circuit had not yet issued the mandate. On June 14, 2019, the Ninth Circuit issued the mandate. (ECF No. 145.) In an abundance of caution, the undersigned vacates the May 17, 2019 findings and recommendations. For the reasons stated herein, the undersigned again recommends dismissal of those claims previously dismissed by the undersigned without the consent of all parties.

         Discussion

         On September 5, 2014, the undersigned issued an order addressing the claims raised in the second amended complaint. (ECF No. 18.) The undersigned dismissed, without leave to amend, plaintiff's claims alleging an inadequate law library, inadequate law library access and race-based lockdowns on March 2, 2011 and November 9, 2012.^[1] Pursuant to Williams v. King, the September 5, 2014 dispositive order dismissing these claims without leave to amend was improper because not all parties had consented to the undersigned's jurisdiction. Accordingly, for the reasons stated in the September 5, 2014 order, the undersigned now recommends dismissal of the claims alleging an inadequate law library, inadequate law library access and race-based lockdowns on March 2, 2011, and November 9, 2012, raised in the second amended complaint.

         The undersigned herein addresses several arguments raised by plaintiff in his objections to the May 17, 2019 findings and recommendations in anticipation that they will be raised again in objections to the instant findings and recommendations.

         In his objections, plaintiff argues that the undersigned's order screening the original complaint is subject to challenge for want of jurisdiction, pursuant to Williams v. King. For the reasons stated herein, this argument is without merit.

         On June 11, 2014, the undersigned dismissed original plaintiff's complaint with leave to amend. (ECF No. 9.) In this order, the undersigned also denied plaintiff's May 19, 2014 motion to amend his complaint to correct a typographical error. (Id.) Because neither of these orders was dispositive, they are unaffected by the remand of this action pursuant to Williams v. King. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (dismissal of complaint with leave to amend is a non-dispositive matter); S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013 (“[W]here the denial of a motion … is effectively a denial of the ultimate relief sought, such a motion is considered dispositive.”)

         In his objections, plaintiff argues that this action must restart anew from the erroneously issued September 5, 2014 order. This argument is without merit. It is clear that Williams v. King does not require this litigation to restart anew from the September 5, 2014 order unless the district court declines to adopt the recommendation that the claims alleging an inadequate law library, inadequate law library access and race-based lockdowns on March 2, 2011 and November 9, 2012 be dismissed.

         Plaintiff also argues that this action should restart from the June 11, 2014 order dismissing the original complaint with leave to amend because the second amended complaint was filed without leave of court. For the following reasons, this argument is without merit.

         On June 11, 2014, the undersigned dismissed the original complaint with leave to amend. (ECF No. 9.) On July 14, 2014, plaintiff filed a first amended complaint. (ECF No. 13.) On July 21, 2014, plaintiff filed the second amended complaint. (ECF No. 15.) On September 5, 2014, the undersigned issued the order screening the second amended complaint, rather than the first amended complaint. (ECF No. 18.) Based on these circumstances, plaintiff's argument that this action should proceed from the June 11, 2014 order because he filed the second amended complaint without leave of court is without merit. The undersigned observes that in the reply to ...