Wiley v. Kern County Sheriff et al
Filing
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ORDER DENYING 10 Motion to Proceed IFP and ORDER DENYING 11 Second Motion to Compel AS MOOT signed by Magistrate Judge Barbara A. McAuliffe on 8/22/2017. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY WILEY, SR.,
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Plaintiff,
v.
KERN COUNTY SHERIFF, et al.,
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Defendants.
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Case No. 1:17-cv-00981-BAM (PC)
ORDER DENYING SECOND MOTION TO
COMPEL AS MOOT
(ECF No. 11)
ORDER DENYING MOTION TO PROCEED
IN FORMA PAUPERIS
(ECF No. 10)
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I.
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Plaintiff Anthony Wiley, Sr. (“Plaintiff”) is a pretrial detainee proceeding pro se in this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of a
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United States Magistrate Judge. (ECF No. 5.)
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Background
On July 31, 2017, Plaintiff filed an application to proceed in forma pauperis. (ECF No.
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6.) However, Plaintiff failed to attach a certified copy of his inmate trust account statement
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showing transactions for the past six months, and failed to have an authorized officer of the
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institution of incarceration complete the certification portion of the form. The Court denied
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Plaintiff’s motion to proceed in forma pauperis and ordered Plaintiff to submit a completed
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application or pay the filing fee within forty-five (45) days. (ECF No. 7.)
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On August 17, 2017, Plaintiff filed a motion to compel Kern County to comply or submit
application. (ECF No. 8.) Plaintiff states that he submitted an application to proceed pro se to the
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Kern County Sheriff Financial Department on August 5, 2017, but the application was not signed
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and returned. Plaintiff did receive a copy of his account statement, and the response to his request
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was signed by a member of the Sheriff’s Department. Those documents are attached to the
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motion to compel. (Id.) On August 21, 2017, the Court issued an order finding that Plaintiff had
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provided the necessary information to fulfill the requirements for a trust account statement and
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certification, and denying the motion to compel as moot. (ECF No. 9.) Plaintiff was directed to
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file a new application to proceed in forma pauperis, and specifically requested more information
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regarding the five-bedroom home listed as an asset in Plaintiff’s prior application.
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II.
Renewed Motions to Compel and Motion to Withdraw Consent to Magistrate
Judge Jurisdiction
Following the issuance of the August 21, 2017 order, the Court received Plaintiff’s
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renewed motion to proceed in forma pauperis, (ECF No. 10), and a second motion to compel
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(ECF No 11). It appears Plaintiff’s motions crossed with the Court’s order in the mail.
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Plaintiff’s second motion to compel is also denied as moot. As discussed in the Court’s
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August 21, 2017 order, Plaintiff has provided the necessary information from the Kern County
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Sheriff to fulfill the requirements for a trust account statement and certification.
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In his motion to compel, Plaintiff also moves to withdraw his consent to magistrate judge
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jurisdiction. Plaintiff alleges that the magistrate judge has shown bias and questionable judgment
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in allowing Defendants to not comply with a court order and to prevent him from exercising his
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right to move forward in this case. Plaintiff requests that the Clerk of the Court send him an
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application to withdraw his consent to magistrate judge jurisdiction and the address and
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application to file a complaint against a federal judge. (Id.)
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Once a civil case is referred to a magistrate judge under 28 U.S.C. § 636(c), “[t]he court
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may, for good cause shown on its own motion, or under extraordinary circumstances shown by
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any party, vacate a reference . . . .” 28 U.S.C. § 636(c)(4); Dixon v. Ylst, 990 F.2d 478, 480 (9th
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Cir. 1993) (no absolute right in civil case to withdraw consent to magistrate judge). Following
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written consent, the reference to a magistrate judge will not be vacated where the party fails to
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demonstrate extraordinary circumstances and the court does not sua sponte find good cause for
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withdrawal of consent. Id.
Here, Plaintiff’s disagreement with the Court’s orders regarding his motion to proceed in
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forma pauperis provides no basis for the withdrawal of his earlier consent. Further, Plaintiff is
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reminded that no defendant has been ordered served, and no defendant has yet made an
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appearance. Thus, the Court lacks personal jurisdiction over any prison officials at the Kern
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County Sheriff’s Department, and it cannot issue an order requiring them to take any action. The
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Court finds that Plaintiff has failed to demonstrate extraordinary circumstances and has failed to
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establish good cause to withdraw his consent. Dixon, 990 F.2d at 480.
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III.
Motion to Proceed In Forma Pauperis
Plaintiff’s renewed motion to proceed in forma pauperis is denied, as it does not contain
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sufficient information regarding Plaintiff’s assets, specifically the property valued at $239,000.00.
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As directed in the Court’s August 21, 2017, order, Plaintiff’s renewed application to proceed in
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forma pauperis is due within thirty (30) days from the date of service of that order, and should
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include additional information regarding Plaintiff’s property.
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IV.
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Accordingly, IT IS HEREBY ORDERED as follows:
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1.
Plaintiff’s second motion to compel (ECF No. 11) is DENIED as moot;
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2.
Plaintiff’s motion to withdraw consent to magistrate judge jurisdiction (ECF No.
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Conclusion and Order
11) is DENIED; and
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Plaintiff’s motion to proceed in forma pauperis (ECF No. 10) is DENIED without
prejudice.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
August 22, 2017
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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