Diaz v. Osman, et al.
MIGUEL ENRIQUE DIAZ |
M. OSMAN, Doctor, DITOMAS, SRN, AMY MAGARUH, RN, FISHER, LVN, Y. GRIFFIS, RN and TORRES, LVN |
23-2085 |
September 5, 2023 |
U.S. Court of Appeals, Ninth Circuit |
Other |
Docket Report
This docket was last retrieved on October 31, 2023. A more recent docket listing may be available from PACER.
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Filing 4 OPENING BRIEF submitted for filing by Appellant Miguel Enrique Diaz. [Entered: 10/31/2023 02:34 PM] |
Filing 3 ORDER FILED. (William A. FLETCHER, Consuelo M. CALLAHAN, Mark J. BENNETT) Appellants August 28, 2023 notice of appeal challenges the magistrate judges July 31, 2023 order disregarding appellants July 20, 2023 motion for a preliminary injunction and temporary restraining order, and granting appellant leave to file a complaint and application to proceed in forma pauperis in compliance with Federal Rule of Civil Procedure 3. See In re San Vicente Med. Partners Ltd., 865 F.2d 1128, 1131 (9th Cir. 1989) (order) (magistrate judge order not final or appealable in cases without full consent). To the extent that the magistrate judges July 31, 2023 order disregarding appellants July 20, 2023 filing denied injunctive relief, the magistrate judge lacked authority to deny injunctive relief absent consent under 28 U.S.C. 636(c). See Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir. 1992) (absent consent of all parties, magistrate judge lacks authority to deny injunctive relief); see also Allen v. Meyer, 755 F.3d 866, 867 (9th Cir. 2014) (Because our jurisdiction to adjudicate the underlying merits of this appeal hinges on the magistrate judges proper exercise of jurisdiction, we have the authority to review the antecedent question of whether the magistrate judge validly entered judgment on behalf of the district court.). Rather than dismiss this appeal, we remand to the district court with instructions to vacate the magistrate judges July 31, 2023 order and conduct further proceedings on appellants July 20, 2023 filing. See Allen, 755 F.3d at 869 (remanding to district court with instructions to vacate judgment entered in excess of magistrate judges authority). On remand, the district judge may elect to treat the magistrate judges July 31, 2023 order as a report and recommendation on the request for injunctive relief, and on whether the July 20, 2023 filing constituted a complaint to commence the action. The Clerk will send this order to the district judge. All pending motions are denied as moot. REMANDED. [Entered: 10/27/2023 01:21 PM] |
Filing 2 SCHEDULE NOTICE. Appeal No RT Opening Brief Due 10/27/2023. All briefs shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1. Failure of the petitioner(s)/appellant(s) to comply with this briefing schedule will result in automatic dismissal of the appeal. See 9th Cir. R. 42-1. [Entered: 09/05/2023 02:08 PM] |
Filing 1 CASE OPENED. A copy of your notice of appeal / petition filed in 2:23-cv-01449-DAD-JDP has been received in the Clerk's office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court of Appeals docket number 23-2085 has been assigned to this case. All communications with the court must indicate this Court of Appeals docket number. Please carefully review the docket to ensure the name(s) and contact information are correct. It is your responsibility to alert the court if your contact information changes. Resources Available For more information about case processing and to assist you in preparing your brief, please review the Case Opening Information (for #attorneys and #pro se litigants) and review the #Appellate Practice Guide. Counsel should consider contacting the court's #Appellate Mentoring Program for help with the brief and argument. [Entered: 09/05/2023 01:59 PM] |
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