Bird v. Zuniga et al

Filing 17

ORDER for Assignment of District Judge; FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Request to Withdraw His Consent be DENIED and the Matter be Referred Back to the Undersigned for All Further Proceedings re 8 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Michael J. Seng on 6/22/2016. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The new case number is 1:15-cv-00910-DAD-MJS (PC). Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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CASE NO. 1:15-cv-00910--MJS (PC)

MICHAEL BIRD,

ORDER FOR ASSIGNMENT OF DISTRICT
JUDGE

v.
A. ZUNIGA, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS ON
OBJECTIONS TO ORDER DENYING
REQUEST TO WITHDRAW CONSENT TO
MAGISTRATE JUDGE JURISDICTION
(ECF No. 15)

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FOURTEEN (14) DAY OBJECTION
DEADLINE

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I.

PROCEDURAL HISTORY

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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 Musleh on Plaintiff’s Eighth Amendment failure to protect claim. Defendant

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Musleh has not yet appeared in this action.

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On July 6, 2015, 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. 6.) On May 13, 2016, after the Court

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screened Plaintiff’s first amended complaint and dismissed several claims and

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defendants, Plaintiff filed a request to withdraw his consent to Magistrate Judge

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jurisdiction. (ECF No. 10.) The undersigned denied the motion on the ground that

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Plaintiff failed to present good cause or extraordinary circumstances to support his

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request. Dixon v. Ylst, 990 F.2d 478, 479 (9th Cir. 2003); see also 28 U.S.C. § 636(c)(4).

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(ECF No. 14.)

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Before the Court are Plaintiff’s objections to the order denying his request to

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withdraw his consent to Magistrate Judge jurisdiction. (ECF No. 15.) Plaintiff contends

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that the undersigned is without authority to rule on his request, and that such requests

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must instead be resolved by a district judge pursuant to Federal Rule of Civil Procedure

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73(b)(3).

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The Ninth Circuit has affirmed the authority of a Magistrate Judge to rule on a

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motion to withdraw consent. E.g., Dixon, 990 F.2d at 478. Nevertheless, as Plaintiff now

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requests review by a district judge, and as the district judge retains residual authority

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over this matter for purposes of resolving such a request, Fed. R. Civ. P. 73(b)(3); 12

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Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure

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§ 3071.3, at 411 (2d ed.) (“Even when the parties consent to the exercise of case-

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dispositive jurisdiction by a magistrate judge, however, the district judge retains “residual

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authority,” under the statute and under Rule 73(b)(3), to vacate the reference of the

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proceedings.” (footnote omitted)), the Court will order that a district judge be assigned for

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purposes of resolving Plaintiff’s request. As to the merits of Plaintiff’s request, the

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undersigned issues the following findings and recommendations.

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II.

LEGAL STANDARD

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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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III.

DISCUSSION

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As stated in the Court’s prior order, Plaintiff’s request set forth no basis for

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seeking to withdraw his consent. His objections state only that the undersigned did not

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construe his pleading liberally when screening the complaint. This disagreement with the

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Court’s screening order does not constitute extraordinary circumstances and is not an

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adequate ground for seeking to withdraw consent. See Graham v. Runnels, No. CIV S–

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07–2291 GGH P, 2010 WL 3941428, *2 (E.D. Cal. Oct. 5, 2010) (denying

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reconsideration of order denying plaintiff's motion to withdraw consent); M & I Marshall &

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Ilsley Bank v. McGill, No. 10–CV–1436–PHX–ECV, 2011 WL 2464184, at *2 (D. Ariz.

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Jun. 21, 2011) (denying motion to withdraw consent stating that disagreement with

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magistrate judge's rulings is not an extraordinary circumstance); see also Sanches v.

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Carrollton–Farmers Branch Independent School Dist., 647 F.3d 156, 177–72 (5th Cir.

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2011) (denying reconsideration of order denying plaintiff's motion to withdraw consent

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stating that dissatisfaction with a magistrate judges' decision does not constitute

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extraordinary circumstances). Accordingly, the undersigned will recommend that the

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request to withdraw consent be denied.

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IV.

CONCLUSION

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The Clerk of Court is HEREBY ORDERED to assign a district judge to this action.

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Furthermore, it is HEREBY RECOMMENDED that:

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1. Plaintiff’s request to withdraw his consent (ECF No. 15) be DENIED;
and
2. The matter be referred back to the undersigned for all further
proceedings pursuant to 28 U.S.C. § 636(c)(1)
This recommendation 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)(1). Within

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fourteen (14) days after being served with the findings and recommendation, Plaintiff

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may file written objections with the Court. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised

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that failure to file objections within the specified time may result in the waiver of rights on

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

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

June 22, 2016

/s/

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UNITED STATES MAGISTRATE JUDGE

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Michael J. Seng

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