BENJAMIN TOSCANO V. SCOTT KERNAN, No. 17-15995 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION JAN 25 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT BENJAMIN K. TOSCANO, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 17-15995 D.C. No. 1:17-cv-00292-MJS v. MEMORANDUM* SCOTT KERNAN; et al., Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Michael J. Seng, Magistrate Judge, Presiding Submitted January 16, 2018** Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges. Benjamin K. Toscano, a California state prisoner, appeals pro se from the magistrate judge’s order dismissing his 42 U.S.C. § 1983 action alleging constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the magistrate judge validly entered judgment on behalf of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the district court. Allen v. Meyer, 755 F.3d 866, 867-68 (9th Cir. 2014). We vacate and remand. Toscano consented to proceed before the magistrate judge. See 28 U.S.C. § 636(c). The magistrate judge then screened and dismissed Toscano’s action before the named defendants had been served. See 28 U.S.C. §§ 1915A(b)(1)-(2), 1915(e)(2)(B)(ii). Because all parties, including unserved defendants, must consent to proceed before the magistrate judge for jurisdiction to vest, Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017), we vacate the magistrate judge’s order and remand for further proceedings. VACATED and REMANDED. 2 17-15995

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