(PC) Hollis v. Bal et al, No. 2:2013cv02145 - Document 16 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/14/2018 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED that plaintiff's 15 motion for relief from judgment be granted and the 5/20/2014 order and judgment be vacated, and the Clerk be directed to reopen the case; and plaintiff's 3 motion to proceed ifp be granted. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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(PC) Hollis v. Bal et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN GLENN HOLLIS, 12 Plaintiff, 13 14 No. 2:13-cv-2145-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS J. BAL, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 18 U.S.C. § 1983. Shortly after filing his complaint, plaintiff filed a motion to proceed in forma 19 pauperis and consented to the jurisdiction of a magistrate judge. ECF Nos. 3 & 4. On May 20, 20 2014, before any defendant was served, the undersigned denied plaintiff’s application to proceed 21 in forma pauperis pursuant to the “three-strikes” provision of 28 U.S.C. § 1915(g) and dismissed 22 the case without prejudice to re-filing upon prepayment of the $400 filing fee. ECF No. 6. 23 Plaintiff now moves for reconsideration of that order and seeks relief from judgment pursuant to 24 Rule 60(b) of the Federal Rules of Civil Procedure, citing Williams v. King, 875 F.3d 500 (9th 25 Cir. 2017), which held that all parties, including unserved defendants, must consent in order for 26 jurisdiction to vest with the magistrate judge pursuant to 28 U.S.C. § 636(c)(1). ECF No. 15. 27 Plaintiff’s motion should be granted, as follows. 28 ///// 1 Dockets.Justia.com 1 First, given that all named parties did not consent to proceed before the magistrate judge, 2 the May 20, 2014 order and judgment are void and plaintiff’s motion for relief from judgment 3 should be granted. See Fed. R. Civ. P. 60(b)(4). 4 Second, and upon reconsideration, plaintiff’s application to proceed in forma pauperis 5 should be granted because plaintiff made plausible allegations that he was “under imminent 6 danger of serious physical injury” at the time he lodged his complaint, including that the denial of 7 accommodations for his various medical conditions and disabilities subjected him to “daily 8 increased pain in his feet, back, and shoulders.” ECF No. 1 at 22; 28 U.S.C. § 1915(g); see also 9 Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (an exception to the three-strikes rule 10 exists “if the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of 11 serious physical injury’ at the time of filing”). 12 13 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly assign a United States District Judge to this action. 14 Further, IT IS HEREBY RECOMMENDED that: 15 1. Plaintiff’s motion for relief from judgment (ECF No. 15) be granted and the May 20, 16 2014 order (ECF No. 6) and judgment (ECF No. 7) be vacated and the Clerk directed 17 to reopen the case. 18 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 3) be granted. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be served and filed within fourteen days after service of the objections. The 25 parties are advised that failure to file objections within the specified time may waive the right to 26 ///// 27 ///// 28 ///// 2 1 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 2 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: March 14, 2018. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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