Serrano v. Rawers et al

Filing 46

ORDER DENYING 40 Request to Withdraw Consent; ORDER ASSIGNING Case and Presiding Judge signed by Magistrate Judge Michael J. Seng on 2/24/2015. The New Case Number is 1:11-cv-00399-MJS(PC). (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESSIE L. SERRANO,

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Plaintiff,

OLD CASE NO. 1:11-cv-00399-LJO-MJS (PC)
NEW CASE NO. 1:11-cv-00399-MJS (PC)

v.
SCOTT RAWERS, et al.,

ORDER DENYING REQUEST TO
WITHDRAW CONSENT (ECF No. 40)

Defendants.
ORDER ASSIGNING CASE AND PRESIDING
JUDGE

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds against
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Defendant Lucas on Plaintiff’s Eighth Amendment failure to protect claim.

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On April 14, 2011, Plaintiff consented to have a United States Magistrate Judge
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conduct all further proceedings in this case, including trial and entry of final judgment,
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pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 4.) On July 16, 2014, Defendant declined to
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proceed before a Magistrate Judge. On September 16, 2014, Defendant filed a motion
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for summary judgment (ECF No. 34), and thereafter consented to Magistrate Judge
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jurisdiction for all purposes (ECF No. 39).
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On December 17, 2014, Plaintiff filed a notice stating that he declines to proceed
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before a Magistrate Judge (ECF No. 40), which the Court construes as a motion to

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withdraw his April 14, 2011 consent.

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“A party to a federal civil case has, subject to some exceptions, a constitutional

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right to proceed before an Article III judge.” Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir.

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2003). This right can be waived, allowing parties to consent to have any and all further

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proceedings conducted before a Magistrate Judge. Id. at 479-80. There is no absolute

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right to withdraw consent to proceeding before a Magistrate Judge. Id. at 480. Instead, a

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motion to withdraw consent may be granted only for good cause or a showing of

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extraordinary circumstances. Id.; see also 28 U.S.C. § 636(c)(4).

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Here, Plaintiff filed only the Court’s standard form requiring a party to consent to

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or decline Magistrate Judge jurisdiction. (ECF No. 40.) He provides no basis for seeking

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to withdraw his consent. Accordingly, his request to withdraw his April 14, 2011 consent

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to Magistrate Judge jurisdiction is HEREBY DENIED.

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The parties having consented to have all further proceedings in this case,

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including trial and entry of final judgment, conducted before a Magistrate Judge (ECF

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Nos. 4 & 39), IT IS HEREBY ORDERED that the above entitled action is assigned to the

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docket of Magistrate Judge MICHAEL J. SENG as Presiding Judge.

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ALL FUTURE PLEADINGS SHALL BE

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NUMBERED AS FOLLOWS:

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1:11-cv-00399-MJS (PC)

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

February 24, 2015

UNITED STATES DISTRICT JUDGE
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