Windham v. Marin et al

Filing 41

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Motion to Proceed Before U.S. Magistrate Judge, signed by Magistrate Judge Barbara A. McAuliffe on 8/6/2015, referred to Judge O'Neill. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES W. WINDHAM,

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Plaintiff,
v.
M. MARIN, et al.,
Defendants.

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Case No.: 1:14-cv-01636-LJO-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION TO
PROCEED BEFORE U.S. MAGISTRATE JUDGE
(ECF No. 40)
FOURTEEN-DAY DEADLINE

Plaintiff Charles W. Windham (“Plaintiff”) is a state prisoner proceeding pro se in this civil
rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s Eighth Amendment

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claims of excessive force against Defendants M. Marin, D. Uribe, W. Rasley, J. Contreras, A. Capano,
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R. Rubio and Doe #1, and for deliberate indifference to serious medical needs against Defendants C.
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Navarro, V. Morales, M. Marin and S. Shiver. Plaintiff’s claims arise out of an alleged unprovoked

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assault on September 11, 2014 at the Corcoran State Prison.
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Presently pending before the Court is Plaintiff’s motion filed on July 31, 2015 and entitled,
“DEFENDANTS’ VIOLATION OF COURT’S 6-16-15 ORDER.” (ECF No. 40.) In his motion,

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Plaintiff alleges that he previously consented to the jurisdiction of the undersigned United States
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Magistrate Judge for all proceedings in this case. (Id. at p. 1.) He further alleges that Defendants were
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ordered to consent or decline to consent to such jurisdiction within 30 days of June 16, 2015. (Id.) He
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observes that Defendants’ form declining to consent was filed on July 23, 2015, (ECF. No. 39.), after
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the 30-day deadline. (Id. at pp. 1-2.) He argues that by filing their form after the deadline, Defendants

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have waived their choice to consent or decline to a United States Magistrate Judge’s jurisdiction for all

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further proceedings in this matter, and consequently they should be compelled to proceed before the

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undersigned for all further proceedings in this case, including any trial. (Id. at p. 2.)

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The Court construes Plaintiff’s motion as a request to proceed before a United States

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magistrate judge for all further proceedings in this case despite Defendants’ non-consent, and

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recommends that his motion be denied. “The Federal Magistrate Act provides that ‘[u]pon the consent

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of the parties, a full-time United States magistrate judge . . . may conduct any or all proceedings in a

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jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to

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exercise such jurisdiction by the district court.’ ” Roell v. Withrow, 538 U.S. 580, 585, 123 S.Ct.

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1696, 1700 (2003) (alterations in original) (quoting 28 U.S.C. § 636(c)(1)). “Consent thus emerges

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from the statute as the touchstone of magistrate judge jurisdiction.” Anderson v. Woodcreek Venture

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Ltd., 351 F.3d 911, 914 (9th Cir. 2003). Here, the parties have not all agreed to consent to a United

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States Magistrate Judge’s jurisdiction for all further proceedings in this case. Contrary to Plaintiff’s

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allegations, the forms he previously submitted did not indicate that he consented to a magistrate

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judge’s jurisdiction for all further proceedings in this case, but rather indicated he declined to consent

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to such jurisdiction. (ECF. Nos. 6, 8.) His motion is the first written indication that he wishes to

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consent. Nevertheless, Defendants have unequivocally indicated that they decline to consent to such

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jurisdiction at this time. Without the consent of all parties, a United States magistrate judge may not

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preside over the trial in this case or make dispositive rulings. 28 U.S.C. § 636(c)(1). Although

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Defendants should have completed and returned their form to the Clerk’s Office within 30 days as

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ordered, it is not appropriate to treat the lack of timeliness on their part as waiving their decision to

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decline to a magistrate judge’s jurisdiction for all further proceedings in this matter.

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Accordingly, the Court HEREBY RECOMMENDS that Plaintiff’s motion to proceed before a
United States Magistrate Judge for all further proceedings in this case be denied.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 6, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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