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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JESSIE L. SERRANO, 11 12 13 14 15 16 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 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 19 rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds against 20 Defendant Lucas on Plaintiff’s Eighth Amendment failure to protect claim. 21 On April 14, 2011, Plaintiff consented to have a United States Magistrate Judge 22 conduct all further proceedings in this case, including trial and entry of final judgment, 23 pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 4.) On July 16, 2014, Defendant declined to 24 proceed before a Magistrate Judge. On September 16, 2014, Defendant filed a motion 25 for summary judgment (ECF No. 34), and thereafter consented to Magistrate Judge 26 jurisdiction for all purposes (ECF No. 39). 27 On December 17, 2014, Plaintiff filed a notice stating that he declines to proceed 28 1 before a Magistrate Judge (ECF No. 40), which the Court construes as a motion to 2 withdraw his April 14, 2011 consent. 3 “A party to a federal civil case has, subject to some exceptions, a constitutional 4 right to proceed before an Article III judge.” Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 5 2003). This right can be waived, allowing parties to consent to have any and all further 6 proceedings conducted before a Magistrate Judge. Id. at 479-80. There is no absolute 7 right to withdraw consent to proceeding before a Magistrate Judge. Id. at 480. Instead, a 8 motion to withdraw consent may be granted only for good cause or a showing of 9 extraordinary circumstances. Id.; see also 28 U.S.C. § 636(c)(4). 10 Here, Plaintiff filed only the Court’s standard form requiring a party to consent to 11 or decline Magistrate Judge jurisdiction. (ECF No. 40.) He provides no basis for seeking 12 to withdraw his consent. Accordingly, his request to withdraw his April 14, 2011 consent 13 to Magistrate Judge jurisdiction is HEREBY DENIED. 14 The parties having consented to have all further proceedings in this case, 15 including trial and entry of final judgment, conducted before a Magistrate Judge (ECF 16 Nos. 4 & 39), IT IS HEREBY ORDERED that the above entitled action is assigned to the 17 docket of Magistrate Judge MICHAEL J. SENG as Presiding Judge. 18 ALL FUTURE PLEADINGS SHALL BE 19 NUMBERED AS FOLLOWS: 20 1:11-cv-00399-MJS (PC) 21 22 23 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill February 24, 2015 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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