Unpublished Disposition, 902 F.2d 39 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 39 (9th Cir. 1989)

Mark LARUE, Plaintiff-Appellant,v.Chase RIVELAND and Joseph D. Lehman, Defendants-Appellees.

No. 89-35759.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1990.* Decided April 27, 1990.

Before TANG, NELSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Mark LaRue appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. The district court, on the basis of the magistrate's lodged order, dismissed LaRue's action for failure to prosecute or, in the alternative, for mootness. We have jurisdiction pursuant to 29 U.S.C. § 1291. We reverse and remand.

LaRue, a Washington state prisoner currently incarcerated in Illinois, filed an action alleging that the appellants, Washington state prison officials, had denied him meaningful access to the courts by transferring him to an out of state correctional facility where he was unable to contact Washington state inmates who may be potential witnesses in his pending civil rights actions.

LaRue raises numerous contentions of error including the district court's failure to follow the procedural requirements of the Magistrates Act, 28 U.S.C. § 636(b) (1). Because this contention has merit, we need not reach the other substantive issues raised by LaRue's appeal.1  See Coolidge v. Schooner California, 637 F.2d 1321, 1323 (9th Cir.) cert. denied, 451 U.S. 1020 (1981).

The Magistrates Act provides, in part, that

(B) a judge may also designate a magistrate ... to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, ... of prisoner petitions challenging conditions of confinement.

(C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

Magistrates Act, 28 U.S.C. § 636(b) (1) (B), (C); see also Fed.Local Ct.R.W.D.Wa. MR 4(c) (" [a]ny party may object to the magistrate's proposed findings, recommendations or report issued under this rule within ten days after being served with a copy thereof"). Moreover, in Coolidge, we held that "the parties must be given an opportunity to submit objections to the district judge [,] and the judge must make a de novo review." 637 F.2d at 1326.

Here, the magistrate submitted a proposed order to District Judge Thomas Zilly on October 11, 1989. On October 13, 1989, Judge Zilly signed the order, and it was entered that day. In his brief, LaRue contends that he was never served with a copy of the proposed order dismissing his case. His contention is supported by the case docket, which gives no indication that the proposed order was ever served, and is unrefuted by the appellees. Even if LaRue had been given a copy of the proposed order from the magistrate, it is obvious from the dates that he was not given the requisite ten days to file an objection to the proposed order. See 28 U.S.C. § 636(b) (1). Had LaRue been served and given ten days in which to file an objection, LaRue could have marshalled arguments, similar to the ones he raises here on appeal, which would have been subject to de novo review before Judge Zilly.

We, therefore, find that the district court erred in not giving LaRue an opportunity to object to the order proposed by the magistrate. See Coolidge, 637 F.2d at 1326. Accordingly, we reverse and remand to the district court for further proceedings.

REVERSED and REMANDED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

These other issues include whether the district court erred in: (1) denying him appointment of counsel; (2) dismissing his complaint for failure to prosecute or for mootness; and (3) denying LaRue's motion to compel discovery