McNeely v. Chappell

Filing 34

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/5/13 ORDERING that Petitioners motion to vacate the reference to a United States Magistrate Judge, ECF No. 31 , is DENIED; and Petitioners motion for sanctions, ECF No. 33 , is DENIED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOCK MCNEELY,
Petitioner,

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vs.

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No. 2:12-cv-0931-EFB P

KEVIN CHAPPELL,
Respondent.

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ORDER
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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2241. On January 31, 2013, petitioner filed a notice of consent to

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the disposition of this case by a United States Magistrate Judge. ECF No. 25. Petitioner now

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moves to vacate the reference to a United States Magistrate Judge. ECF No. 31. Respondent

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opposes the motion. ECF No. 32. Petitioner filed a reply to the opposition, in which he requests

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sanctions be imposed against respondent. ECF No. 33.

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I.

Background

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The circumstances leading to petitioner’s attempt to withdraw his consent to a magistrate

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judge’s jurisdiction are as follows. On January 2, 2013, petitioner requested the Clerk to change

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the docket to reflect that his habeas petition was filed pursuant to 28 U.S.C. § 2241, and not

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section 2254. ECF No. 19. Respondent filed an opposition to that request. Respondent argued
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that petitioner had provided a false recitation of the facts surrounding his current custody. ECF

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No. 20. Respondent further argued that the present action should proceed as a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Id. In response, petitioner filed a motion for

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sanctions, arguing that respondent’s opposition was frivolous, unreasonable, legally

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unsupportable, and made for an improper purpose. ECF No. 23. On January 31, 2013, petitioner

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consented to the jurisdiction of a magistrate judge over all proceedings in his case. ECF No. 25.

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On February 27, 2013, the undersigned issued an order denying petitioner’s motion for

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sanctions. ECF No. 26.

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On March 7, 2013, petitioner filed a motion for reconsideration, requesting a district

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judge reconsider the undersigned’s order denying his motion for sanctions. Shortly thereafter,

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on March 11, 2013, respondent consented to the jurisdiction of a United States Magistrate Judge

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over all proceedings in this case. ECF No. 28. On March 20, 2013, petitioner filed a notice with

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the court, stating that he “hereby gives notice of his express withdrawal of his [January 31,

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2013], consent to jurisdiction of U.S. Magistrate Judge . . . .” ECF No. 29.

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In an order issued on May 13, 2013, the court informed petitioner that a notice to

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withdraw consent is not self-executing. ECF No. 30. Petitioner was notified that if he wanted to

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seek leave to withdraw his consent, he must file an appropriate motion. Id. On June 7, 2013,

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petitioner filed a motion to vacate the reference to the United States Magistrate Judge. ECF No.

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31. Respondent has filed an opposition to the motion. ECF No. 32. Petitioner filed a reply, in

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which he again requests sanctions be imposed against respondent. ECF No. 33.

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II.

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Motion to Withdraw Consent
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.” 28 U.S.C. § 636(c)(4); Dixon v. Ylst, 990

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F.2d 478, 480 (9th Cir. 1993) (“There is no absolute right, in a civil case, to withdraw consent to

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trial and other proceedings before a magistrate judge.”). Petitioner argues that the reference to a
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magistrate judge must be vacated because the undersigned is disqualified from presiding over

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this case. ECF No. 31. Petitioner contends that the undersigned “was disqualified to make the

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denial of sanctions, because the [undersigned’s] partiality was compromised when he became a

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party to this proceeding.” Id. (citations omitted). Petitioner cites to docket number 15 to support

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his position. Docket number 15 consists of a document entitled “Petition For Mandatory Writ of

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Mandamus,” which petitioner filed with the United States Court of Appeals for the Ninth

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Circuit.1 In that pleading, petitioner argues the merits of his habeas petition presently before this

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court and requests that the Ninth Circuit issue a writ of mandamus directing this court to order

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his immediate release. ECF No. 15 at 3-7, 10. The petition for Mandamus names the

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undersigned and the United States District Court for the Eastern District of California as

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respondents. Id. at 1-3.

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The undersigned did not become a party to this matter upon petitioner naming the

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undersigned as a respondent in a document filed with the Ninth Circuit. The only parties to this

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action are petitioner Dock McNeely and respondent Kevin Chappell. Petitioner’s contention to

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the contrary is mistaken.

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The timing of petitioner’s filings strongly suggests that the instant motion was filed to

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engage in forum shopping. Petitioner consented to the jurisdiction of a United States Magistrate

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Judge on January 31, 2013. On February 27, 2013, the undersigned denied petitioner’s motion

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for sanctions. ECF No. 26. Shortly after receiving this adverse ruling, petitioner filed a motion

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for reconsideration and a notice of withdrawal of his consent to the jurisdiction of a magistrate

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judge. These filings, while insufficient to withdraw petitioner’s consent, see ECF No. 30 at 3,

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evidence petitioner’s intention to obtain a what he believes may be a more favorable forum for

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his claims. An obvious purpose of not permitting a party to withdraw consent to magistrate

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judge jurisdiction absent a showing of extraordinary circumstances is to preclude a party from

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The document was originally filed in this court on December 3, 2012. However,
because the document was addressed to the Ninth Circuit, it was forwarded to that court.
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engaging in forum shopping. This is particularly true where the withdrawal attempt occurs after

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that party has received an adverse ruling on a motion, as is the case here.

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Petitioner has failed to demonstrate extraordinary circumstances justifying the

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withdrawal of his consent to the jurisdiction of a United States Magistrate Judge. Accordingly,

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petitioner’s motion to vacate the reference to a magistrate judge is denied.

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III.

Motion for Sanctions

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Petitioner also moves for the imposition of sanctions against respondent on the ground

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that respondent committed a fraud upon the court. ECF No. 33; see Fed. R. Civ. P. 11(b) and

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(c). Petitioner claims that respondent fraudulently filed a document entitled “Opposition to

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Motion to Withdraw Consent to Magistrate Judge Jurisdiction” when petition never filed a

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motion with this title. While the document he filed with this court was not titled “Motion to

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Withdraw Consent to Magistrate Judge Jurisdiction,” his motion, titled “Motion to Vacate the

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Reference to the Magistrate,” did seek to withdraw his consent. Regardless of the titles given,

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the pleadings filed by both parties address the same issue: petitioner’s attempt to withdraw his

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consent to the jurisdiction of a magistrate judge over all proceedings in his case. Petitioner’s

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dispute over semantics does not provide a basis for sanctions. Accordingly, petitioner’s motion

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for sanctions is denied.

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IV.

Conclusion

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s motion to vacate the reference to a United States Magistrate Judge, ECF

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No. 31, is denied; and
2. Petitioner’s motion for sanctions, ECF No. 33, is denied.
Dated: August 5, 2013.

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