Gibbs v. Smith

Filing 50

ORDER signed by Magistrate Judge Sheila K. Oberto on 9/15/2010 disregarding 48 Withdrawal of Consent to Magistrate Judge Jurisdiction by Petitioner and denying 47 Motion for Sanctions. (Lundstrom, T)

(HC)Gibbs v. Smith

Doc. 50

1 2 3 4 5 6 7 8 9 10 CURTIS A. GIBBS, 11 Petitioner, 12 13 14 15 16 17 18 Petitioner is a federal prisoner proceeding pro se in a 19 habeas corpus action pursuant to 28 U.S.C. § 2241. 20 28 U.S.C. § 636(c)(1), the parties have consented to the 21 jurisdiction of the United States Magistrate Judge to conduct all 22 further proceedings in the case, including the entry of final 23 judgment, by manifesting their consent in writings signed by the 24 parties or their representatives and filed by Petitioner on 25 November 7, 2007, and on behalf of Respondent on June 9, 2010. 26 Pending before the Court are Petitioner's purported withdrawal of 27 consent and motion for charges of misconduct. 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. J. E. THOMAS, Respondent.

) ) ) ) ) ) ) ) ) ) ) )

1:07-cv--01563-SKO-HC ORDER DISREGARDING PETITIONER'S PURPORTED WITHDRAWAL OF CONSENT TO MAGISTRATE JUDGE JURISDICTION WITHOUT PREJUDICE TO FILING A MOTION (Doc. 48) ORDER DENYING PETITIONER'S MOTION FOR SANCTIONS (Doc. 47)

Pursuant to

1 2

I.

Disregard of Petitioner's Purported Withdrawal of Consent

On August 24, 2010, Petitioner filed a document in which he 3 purported to withdraw his consent to the jurisdiction of the 4 Magistrate Judge in this action in order to have oversight by the 5 District Judge and to avoid a risk of delay. 6 Petitioner did not set forth any showing of good cause or 7 extraordinary circumstances. 8 A habeas corpus proceeding is an original civil proceeding. 9 Woodford v. Ngo, 548 U.S. 81, 91 (2006). 10 § 636(c) provides for the parties to consent to Magistrate Judge 11 jurisdiction in civil matters. 12 the Court may, for good cause shown on its own motion, or under 13 extraordinary circumstances shown by a party, vacate a reference 14 of a civil matter to a Magistrate Judge. 15 73(b)(3) likewise provides that on its own for good cause, or 16 when a party shows extraordinary circumstances, a District Judge 17 may vacate a referral to a Magistrate Judge. 18 established that once a case is referred to a Magistrate Judge 19 under § 636(c), the reference can be withdrawn by the Court only 20 for good cause shown on its own motion, or upon a party's showing 21 of extraordinary circumstances. 22 (9th Cir. 1993). 23 referral of the case due to extraordinary circumstances, and the 24 Court does not sua sponte find good cause, it is correct for a 25 Magistrate Judge to continue to proceed in a case. 26 Accordingly, the Court DISREGARDS Petitioner's purported 27 withdrawal of consent, without prejudice to Petitioner's filing a 28 2 Id. However, where no motion is made to vacate the Dixon v. Ylst, 990 F.2d 478, 480 Thus, it is Fed. R. Civ. P. Section 636(c)(4) provides that Title 28 U.S.C. (Doc. 48, 1-2.)

1 2 3 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

motion to withdraw consent and vacate the referral of the case to the Magistrate Judge. II. Motion for Sanctions On August 13, 2010, Petitioner filed a motion entitled as a motion for charges of misconduct with respect to named attorneys who represent Respondent or have represented Respondent earlier in the action. (Doc. 47.) The Court understands this motion to

be a motion for sanctions against the named attorneys. Respondent was sent electronic notification of the filing of the motion on August 13, 2010. The time for filing opposition to the

motion has passed, and Respondent has not filed opposition or notice of non-opposition to the motion. The grounds of the motion are criminal delay and neglect of duty with respect to obtaining the record in this action. A failure to comply with an order of the Court may result in sanctions, including dismissal, pursuant to the inherent power of the Court, federal statute, and the Federal Rules of Civil Procedure. Fed. R. Civ. P. 41(b), 11; Local Rule 110; Chambers v. NASCO, Inc., 501 U.S. 31, 42-43 (1991). Further, sanctions may

be warranted when there has been conduct that is reckless or in bad faith. Zambrano v. City of Tustin, 885 F.2d 1473, 1478-80

(9th Cir. 1989); New Alaska Development Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989). Here, the Court has previously considered the conduct of Respondent in connection with preparation of the record. (Order

granting extension of time filed August 10, 2010 [doc. 43].) Although there was delay in procuring the record, the Court finds that no recklessness, bad faith, or other basis for sanctions has 3

1 2 3 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

been demonstrated.

The Court is mindful that record preparation

in this action has required the cooperation of the military authorities. Further, Respondent has procured the record and has

filed a motion to dismiss. Accordingly, the motion for sanctions is DENIED.

IT IS SO ORDERED. Dated: ie14hj September 15, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

4