Janny v. Palmer et al

Filing 133

ORDER ADOPTING DECEMBER 10, 2018 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. The Court ORDERS that Magistrate Judge Mix's Recommendation (Doc. # 110 ) is AFFIRMED and ADOPTED as an Order of this Court. It is FURTHER ORDERED tha t Plaintiff's Motion to Re-evaluate Whether Magistrate Consent Jurisdiction was Voluntarily and Properly Consented to by the Plaintiff and Allow the Plaintiff to Withdraw Consent (Doc. # 100 ) is DENIED, by Judge Christine M. Arguello on 4/25/2019.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02194-KLM
MARK JANNY,
Plaintiff,
v.
TIM PALMER, Captain, Larimer County Jail, in his individual capacity,
MR. RAMIREZ, Lieutenant, Larimer County Jail, in his individual capacity,
JOSH BELINDER, Lieutenant, Larimer County Jail, in his individual capacity,
MR. BERGLUND, Sergeant, Larimer County Jail, in his individual capacity,
MS. PALORANTA, Sergeant, Larimer County Jail, in her individual capacity,
MR. HARTEKER, Sergeant, Larimer County Jail, in his individual capacity,
MR. SMOYER, Sergeant, Larimer County Jail, in his individual capacity,
MR. SAULTS, Sergeant, Larimer County Jail, in his individual capacity,
MR. LALICKER, Sergeant, Larimer County Jail, in his individual capacity,
MR. PERANTEAUX, Sergeant, Larimer County Jail, in his individual capacity,
MR. MEEKS, Corporal, Larimer County Jail, in his individual capacity,
MR. BURCH, Corporal, Larimer County Jail, in his individual capacity,
TINO MARTINEZ, Corporal, Larimer County Jail, in his individual capacity,
MS. WULFERT, Corporal, Larimer County Jail, in his individual capacity,
MR. VILLARREAL, Corporal, Larimer County Jail, in his individual capacity,
MS. MAHONEY, Corporal, Larimer County Jail, in her individual capacity,
MR. BROWN, Corporal (logistics), Larimer County Jail, in his individual capacity,
MS. GEE, Deputy, Larimer County Jail, in her individual capacity,
JAMIE SMITH, K-9 handler, Larimer County Sheriff’s Office, in his individual capacity,
JUSTIN SMITH, Larimer County Sheriff, in his individual and official capacity,
ATTORNEY DOE, Larimer County Attorney Office, in their individual capacity,
THE MUNICIPALITY OF LARIMER COUNTY,
LARIMER COUNTY DEPUTIES 1-100, in their individual capacities, and
JAIL SUPERVISORS 1-20, in their individual capacities,
Defendants.
ORDER ADOPTING DECEMBER 10, 2018 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

This matter is before the Court upon the December 10, 2018 Recommendation
(Doc. # 110) by United States Magistrate Judge Kristen L. Mix that this Court deny
Plaintiff Mark Janny’s Motion to Re-evaluate Whether Magistrate Consent Jurisdiction
was Voluntarily and Properly Consented to by the Plaintiff and Allow the Plaintiff to
Withdraw Consent (Doc. # 100). Plaintiff filed an Objection (Doc. # 113) to the
Recommendation on January 2, 2019, and Defendants filed a Response (Doc. # 116)
on January 16, 2019. For the reasons that follow, the Court affirms and adopts the
Recommendation and denies Plaintiff’s Motion.
I.

BACKGROUND

The Magistrate Judge’s Recommendation provides a recitation of the factual and
procedural background of this dispute and is incorporated herein by reference. See 28
U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Accordingly, this Order will reiterate only
what is necessary to address Defendant’s objections.
Plaintiff, proceeding pro se, initiated this prisoner civil rights action on September
11, 2017. (Doc. # 1.) The case was initially assigned to Magistrate Judge Gordon P.
Gallagher. (Doc. # 2.) On September 19, 2017, the case was reassigned to Magistrate
Judge Craig B. Shaffer. (Doc. # 6.) Subsequently, on October 27, 2017, the case was
reassigned to this Court and drawn to Magistrate Judge Kristen L. Mix. (Doc. # 26.)
On October 30, 2017, this Court issued an order referring the case to Magistrate
Judge Mix, who was designated to conduct all motion proceedings pursuant to 28
U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b). (Doc. # 27.) Thereafter,
Plaintiff returned a Magistrate Judge Consent Form in which he indicated that he
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consented “to have a United States magistrate judge conduct all proceedings in this civil
action, including trial, and to order the entry of a final judgment . . . .” (Doc. # 36 at 1.)
Accordingly, because all Defendants also consented to have a magistrate judge try this
case, this Court issued an Order of Reference Pursuant to 28 U.S.C. § 636(c) on
December 18, 2017. (Doc. ## 41, 42, 56.) The Court ordered the case to be referred for
disposition to Magistrate Judge Mix, and the case was, therefore, reassigned to
Magistrate Judge Mix. (Doc. # 42 at 1.)
Ten months later, Plaintiff filed the Motion at issue in which he asserts that he
“never consented to Magistrate Consent Jurisdiction while Judge Mix was hearing the
case . . . .” (Doc. # 100.)
II.
A.

LEGAL STANDARDS

REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE’S
RECOMMENDATION
When a magistrate judge issues a recommendation on a dispositive matter,

Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
novo any part of the magistrate judge’s [recommended] disposition that has been
properly objected to.” An objection is properly made if it is both timely and specific. 1
United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d
1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
The Court notes that this is not a dispositive matter and further notes that Plaintiff’s Objection
was not timely. Nevertheless, the Court will conduct a de novo review in order to provide clarity
in this matter.

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B.

PRO SE STATUS
When a party proceeds pro se, as Plaintiff does here, the court “review[s] his

pleadings and other papers liberally and hold[s] them to a less stringent standard than
those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
However, it is not “the proper function of the district court to assume the role of
advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A pro se litigant is still bound by the rules of federal and appellate procedure.
Abdelsamed v. United States, 13 F. App’x 883, 884 (10th Cir. 2001).
III.

DISCUSSION

Pursuant to the Federal Magistrate Act,
Upon the consent of the parties, a full-time United States magistrate judge
. . . may conduct any or all proceedings in a jury or nonjury civil matter and
order the entry of judgment in the case, when specially designated to
exercise such jurisdiction by the district court or courts he serves.
28 U.S.C. § 636(c)(1). Thus, consent is “the touchstone of magistrate judge jurisdiction.”
Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 914 (9th Cir. 2003). In the instant
case, the Court finds that Plaintiff voluntarily consented to the exercise of jurisdiction by
Magistrate Judge Mix.
Plaintiff argues that his consent reflected in the court-issued Magistrate Judge
Consent Form is invalid because he was under the impression that he was consenting
only to the exercise of jurisdiction of Magistrate Judge Shaffer even though the Consent

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Form makes no reference to a particular magistrate judge. 2 (Doc. # 113 at 2); see (Doc.
# 36) (Consent Form). However, courts have rejected such arguments even where—
unlike the Consent Form at issue—a consent form makes an explicit reference to a
particular magistrate judge and the case is later reassigned to a different magistrate
judge. See, e.g., Wilhelm v. Rotman, 680 F.3d 1113, 1119–20 (9th Cir. 2012); Stevo v.
Frasor, 662 F.3d 880, 882 (7th Cir. 2011). In the instant case, the Consent Form clearly
indicates that a party may decline to consent to magistrate judge jurisdiction, yet Plaintiff
unambiguously consented to the jurisdiction of “a United States magistrate judge”
generally. (Doc. # 36 at 1–2) (emphasis added).
Even if Plaintiff’s consent were not clear from the Consent Form itself, in the
alternative, he impliedly consented to the jurisdiction of Magistrate Judge Mix. As the
Supreme Court has held, a court may infer consent where, as here, “the litigant or
counsel was made aware of the need for consent and the right to refuse it, and still
voluntarily appeared to try the case before the Magistrate Judge.” Roell v. Withrow, 538
U.S. 580, 590 (2003). In the instant case, Plaintiff presented his case to Magistrate
Judge Mix for ten months without objection, amending his complaint, and filing
Plaintiff raises two additional arguments which are lacking in merit. First, Plaintiff argues that
he “did not knowingly or intelligently give magistrate consent. The plaintiff merely thought he
was allowing a magistrate judge to handle non-dispositive matters,” (Doc. # 113 at 2) yet that
contention is belied by the plain language of the Consent Form, which indicates that Plaintiff
consented to have a magistrate judge conduct all proceedings in this civil action, including trial
. . . .” (Doc. # 36 at 1) (emphasis added). Second, Plaintiff argues that “[b]y sending the plaintiff
multiple requests after the original request for consent was not returned, the court by its very
authoritative nature exercised coercive power to have plaintiff return a signed consent form.”
(Doc. # 113 at 2–3.) That argument is incredulous. Additionally, the argument fails on its own
terms because even if Plaintiff were “coerced” into returning a signed Consent Form, that would
not preclude him from signing the Consent Form and simply marking the box indicating that he
did not consent to magistrate judge jurisdiction in this case.

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numerous motions. 3 “Inferring consent in these circumstances . . . checks the risk of
gamesmanship by depriving parties of the luxury of waiting for the outcome before
denying the magistrate judge’s authority.” Roell, 538 U.S. at 590.
IV.

CONCLUSION

For the foregoing reasons, the Court ORDERS that Magistrate Judge Mix’s
Recommendation (Doc. # 110) is AFFIRMED and ADOPTED as an Order of this Court.
It is
FURTHER ORDERED that Plaintiff’s Motion to Re-evaluate Whether Magistrate
Consent Jurisdiction was Voluntarily and Properly Consented to by the Plaintiff and
Allow the Plaintiff to Withdraw Consent (Doc. # 100) is DENIED.

DATED: April 25, 2019
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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E.g. (Doc. ## 46, 54, 63, 67, 72, 74, 81, 83, 91, 94, 96, 98).
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