Smith v. Hernandez et al

Filing 96

ORDER Regarding Defendants Hernandez and Flores-Alvarenga to Consent to, Decline to, or Withhold Consent to United States Magistrate Judge Jurisdiction Within Fourteen (14) Days, signed by Magistrate Judge Stanley A. Boone on 1/28/2019. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DELBERT J. SMITH,
Plaintiff,

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Case No.: 1:16-cv-01267-LJO-SAB (PC)
ORDER REGARDING DEFENDANTS
HERNANDEZ AND FLORESALVARENGA TO CONSENT TO,
DECLINE TO, OR WITHHOLD
CONSENT TO UNITED STATES
MAGISTRATE JUDGE JURISDICTION
WITHIN FOURTEEN (14) DAYS

v.
C. HERNANDEZ, et al.,
Defendants.

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Plaintiff Delbert J. Smith is appearing pro se and in forma pauperis in this civil rights

18 action pursuant to 42 U.S.C. § 1983. This action currently proceeds on Plaintiff’s First Amended
19 Complaint against Defendants Hernandez and Flores-Alvarenga for excessive force in violation
20 of the Eighth Amendment and retaliation in violation of the First Amendment, and against
21 Defendant Hernandez for deliberate indifference in violation of the Eighth Amendment.
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Plaintiff previously consented to magistrate judge jurisdiction, on September 22, 2016.

23 (ECF No. 5.) Defendant Hernandez has previously declined to magistrate judge jurisdiction.
24 (ECF No. 23.) Defendant Flores-Alvarenga has neither consented to nor declined magistrate
25 judge jurisdiction.
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On January 25, 2019, the District Judge ruled on Defendants’ motion for partial summary

27 judgment. (ECF No. 95.) Based on the outcome of Defendants’ motion, this case is now ready to
28 be set for trial on Plaintiff’s claims. Therefore, the Court gives the following information.

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The Fresno Division of the Eastern District of California now has the heaviest District

2 Judge caseload in the entire nation. While the Court will use its best efforts to resolve this case
3 and all other civil cases in a timely manner, the parties are admonished that not all of the parties’
4 needs and expectations may be met as expeditiously as desired.
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District Judges are now setting multiple trials to begin upon the same date, and as a result

6 parties may find their case trailing with little notice before the trial begins. The law requires the
7 Court give any criminal case priority over civil trials and other matters, and the Court must
8 proceed with criminal trials even if a civil trial is older or was set earlier. Continuances of civil
9 trials under these circumstances will no longer be entertained, absent a specific and stated
10 finding of good cause. If multiple trials are scheduled to begin on the same day, this civil trial
11 will trail day to day or week to week until completion of any criminal case or older civil case.
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The parties are advised of the availability of a United States Magistrate Judge to conduct

13 all proceedings in this action. A United States Magistrate Judge is available to rule upon
14 dispositive motions and conduct trials if need be, including entry of final judgment, pursuant to
15 28 U.S.C. § 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule 305.
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Based on the foregoing, the Court will direct the Clerk of the Court to provide

17 Defendants Hernandez and Flores-Alvarenga with the Court’s standard form to consent to or
18 decline Magistrate Judge jurisdiction. Within fourteen (14) days of this order’s date of service,
19 Defendants shall either consent to or decline Magistrate Judge jurisdiction by filling out the
20 requisite forms and returning them to the Court.
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Notwithstanding the foregoing, Defendants are advised that they are free to decline or

22 withhold consent without any adverse substantive consequences. The Court also does not take
23 any position on the merits of any claim or defense in this case by issuing this order.
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Based on the foregoing, it is HEREBY ORDERED that:

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1.

The Clerk of the Court is DIRECTED to send to Defendants Hernandez and

26 Flores-Alvarenga a copy of the consent/decline form and the instructions for consenting to or
27 declining Magistrate Judge jurisdiction; and
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2.

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Within fourteen (14) days from the date of service of this order, Defendants shall

2 complete and return the Consent or Request for Reassignment form; OR
3.

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If the form is not received within fourteen (14) days, the Court will assume the

4 Defendants have withheld consent, and will proceed accordingly.
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IT IS SO ORDERED.

7 Dated:

January 28, 2019
UNITED STATES MAGISTRATE JUDGE

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