Brown v. United States of America et al

Filing 28

ORDER Denying Motion (Doc. 27 ), ORDER Directing Clerk's Office To Send Consent/Decline Form To Plaintiff, signed by Magistrate Judge Michael J. Seng on 6/4/2012. (Enclosed: Consent/Decline Form) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOSEPH ANTHONY BROWN,

CASE NO. 1:11-CV-01562-MJS (PC)
ORDER DENYING MOTION

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Plaintiff,

(Doc. 27)

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v.
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ORDER DIRECTING CLERK’S OFFICE TO
SEND CONSENT/DECLINE FORM TO
UNITED STATES OF AMERICA, et al., PLAINTIFF

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Defendants.
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/
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Plaintiff Joseph Anthony Brown, a federal prisoner proceeding pro se filed this

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action on September 15, 2011 pursuant to 42 U.S.C. § 1983 and Bivens v. Six

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Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

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(Compl., ECF No. 1.) Plaintiff indicated his consent in writing to Magistrate Judge

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jurisdiction on November 28, 2011. (Consent, ECF No. 6.)

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Before the Court is Plaintiff’s June 1, 2012, motion seeking to withdraw his consent
and for reconsideration by a district court judge. (Motion to Withdraw, ECF No. 27.)

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Once a civil case is referred to a Magistrate Judge under 28 U.S.C. § 636(c), the

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reference can be withdrawn only “for good cause shown on its own motion, or under

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extraordinary circumstances shown by any party.” Dixon v. Ylst, 990 F.2d 478, 480 (9th

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Cir. 1993); 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(b). This matter has not yet been referred

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to the Magistrate Judge pursuant to section 636(c), and Plaintiff may simply file written
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notice of his decline of Magistrate Judge jurisdiction. Plaintiff’s motion is DENIED as

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premature on the ground that no referral has been made.

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Beyond wanting to withdraw his consent, Plaintiff asks that the Magistrate Judge not

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handle any matters in this action. Plaintiff may not preclude Magistrate Judge

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involvementin matters falling under section 636(b). Those matters have been referred

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to the Magistrate Judge pursuant to Local Rule 302, and are not dependent upon Plaintiff’s

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consent. Accordingly, Plaintiff’s motion for the removal of the Magistrate Judge assigned

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to this case for any and all proceedings is DENIED.

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Finally, to the extent Plaintiff seeks reconsideration of any order issued by the

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Magistrate Judge in this matter, such relief is DENIED. Federal Rule of Civil Procedure

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60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief.

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Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice

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and is to be utilized only where extraordinary circumstances . . . ” exist. Harvest v. Castro,

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531 F.3d 737, 749 (9th Cir. 2008). The moving party “must demonstrate both injury and

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circumstances beyond his control . . . .” Id. In seeking reconsideration of an order, Local

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Rule 230(j) requires a party to show “what new or different facts or circumstances are

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claimed to exist which did not exist or were not shown upon such prior motion, or what

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other grounds exist for the motion.” “A motion for reconsideration should not be granted,

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absent highly unusual circumstances, unless the . . . court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the

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controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,

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880 (9th Cir. 2009), and “[a] party seeking reconsideration must show more than a

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disagreement with the [c]ourt’s decision, and recapitulation . . . ” of that which was already

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considered by the court in rendering its decision. U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). Here Plaintiff fails to identify any specific order

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from which he seeks relief, and fails to make any factual showing in support. Accordingly

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Plaintiff’s motion for reconsideration is DENIED.

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For the reasons set forth herein, Plaintiff’s Motion to Withdraw (ECF No. 27) is

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hereby DENIED in its entirety, and the Clerk’s Office shall send Plaintiff a consent/decline

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form.

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IT IS SO ORDERED.

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Dated:
ci4d6

June 4, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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