NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN K. TOSCANO, No. 17-15995
Plaintiff-Appellant, 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