Parks v. Rolfing et al

Filing 120

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/11/19 ORDERING the Clerk of the Court is directed to re-assign District Judge Kimberly J. Mueller to this matter. Within 10 days of the filing of this order, defendants may respond to plaintiff's 117 motion for extension of time. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WAYNE PARKS, 12 13 No. 2:15-cv-1505 CKD P Plaintiff, v. ORDER 14 JEFFREY ROHLFING, et al., 15 Defendants. 16 17 18 19 Plaintiff is a state prisoner proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Shortly after initiating this case, plaintiff consented to magistrate judge jurisdiction. (ECF 20 No. 4.) After defendants were served, they declined magistrate judge jurisdiction and a district 21 judge was assigned to this case. (ECF Nos. 44, 46.) On August 4, 2017, after counsel was 22 appointed to represent plaintiff, the parties filed a joint status report which stated that plaintiff 23 would “likely agree” to magistrate judge jurisdiction while defendants stated they did not have 24 authority to agree to magistrate judge jurisdiction. (ECF No. 61 at 3, ¶ 10.) Two months later, 25 the parties submitted another joint status report in which the parties reversed their positions on 26 magistrate judge jurisdiction, with plaintiff stating that he would not agree to the case being tried 27 before a magistrate judge and defendants stating that they would “likely agree” to a jury trial 28 before the undersigned. (ECF No. 69-1 at 3, ¶ 8.) Defendants subsequently consented to 1 1 magistrate judge jurisdiction (ECF No. 82) and the case was reassigned and referred to the 2 undersigned for all further proceedings and entry of final judgment (ECF No. 84). 3 The same day this case was reassigned to the undersigned, plaintiff filed a notice declining 4 magistrate judge jurisdiction and a declaration from counsel requesting that the reassignment to 5 the undersigned by vacated. (ECF Nos. 85, 86.) The notice declining magistrate judge 6 jurisdiction and declaration were construed as a request to revoke consent, which was denied by 7 the undersigned because plaintiff did not show good cause or extraordinary circumstances for the 8 withdrawal of his consent. (ECF No. 88 at 11-13.) Despite the denial of the request to withdraw 9 consent, the case was referred back to the District Judge in order to properly dismiss one 10 defendant and to give a newly added defendant an opportunity to consent to or decline magistrate 11 judge jurisdiction. (Id. At 13.) Shortly thereafter, plaintiff moved to vacate the referral to the 12 undersigned (ECF No. 91), and while the motion was pending the newly served defendant filed 13 her consent (ECF No. 97). The District Judge construed the motion to vacate as a motion to 14 withdraw consent and denied the motion for failure to demonstrate good cause or extraordinary 15 circumstances. (ECF No. 101 at 5-10.) Plaintiff has now filed a motion for reconsideration of 16 that order based on the recent opinions handed down by the Ninth Circuit in Branch v. 17 Umphenour, 936 F.3d 994, 1004 (9th Cir. 2019) (district judge must rule on motion to withdraw 18 consent), and Gilmore v. Lockard, 936 F.3d 857, 863 (9th Cir. 2019) (showing of good cause or 19 extraordinary circumstances not necessary to withdraw magistrate judge consent before all parties 20 have consented). Defendants have not opposed the motion. Because the motion for reconsideration relates to plaintiff’s attempts to withdraw his 21 22 consent to magistrate judge jurisdiction and seeks reconsideration of the District Judge’s order, it 23 must be addressed by the District Judge. The case will therefore be re-assigned to District Judge 24 Kimberly J. Mueller for consideration of the motion for reconsideration. Also before the court is plaintiff’s ex parte motion for an extension of the expert witness 25 26 deadline. (ECF No. 117.) Because plaintiff seeks to not only extend, but re-open discovery, 27 defendants will be given an opportunity to respond to the motion. 28 //// 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The Clerk of the Court is directed to re-assign District Judge Kimberly J. Mueller to 3 4 this matter. 2. Within ten days of the filing of this order, defendants may respond to plaintiff’s 5 motion for an extension of time (ECF No. 117). 6 Dated: October 11, 2019 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 7 8 9 13:park1505.refer 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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