Williams et al v. Silvey et al

Filing 83

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that Plaintiffs' Motion To Withdraw Consent To A Magistrate Judge Hearing The Present Case, And For Said Case To Be Heard By A United States District Judge (Docket No. 70) is denied.. Signed by Honorable Charles A. Shaw on 3/30/2012. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERNEST C. WILLIAMS, et al.,
Plaintiffs,
v.
JUDITH SILVEY, et al.,
Defendants.

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No. 4:09CV211 FRB

MEMORANDUM AND ORDER
Presently pending before the court is Plaintiffs’ Motion
To Withdraw Consent To A Magistrate Judge Hearing The Present Case,
And For Said Case To Be Heard By A United States District Judge
(Docket No. 70).
On February 5, 2009, this cause of action was filed pro
se by plaintiffs Ernest C. Williams and Dorris Ellis Williams
naming several defendants and asserting various claims against
those defendants.

The complaint asserts that Ernest and Dorris

Williams are husband and wife.

Upon the plaintiffs’ complaint

being filed it was randomly assigned to United States Magistrate
Judge Frederick R. Buckles pursuant to Rule 2.08(A) of the Local
Rules of the Eastern District of Missouri.

Plaintiffs sought and

eventually were granted leave to proceed in forma pauperis.
At the time of the filing of the complaint the plaintiffs
were provided notice that the case had been randomly assigned to a
United States Magistrate Judge and of their choice to consent to
have the Magistrate Judge proceed to conduct all further matters in

the case or to elect to have the case randomly assigned to a United
States District Judge.

On February 17, 2009, plaintiffs Ernest C.

Williams and Dorris Ellis Williams each separately filed a signed
written notice stating “In accordance with the provisions of Title
28, U.S.C. Sec. 636(c)(1), the undersigned party in the abovecaptioned civil matter hereby voluntarily consents to have a United
States Magistrate Judge conduct any and all further proceedings in
the case, including trial and entry of a final judgment, with
direct review by the Eighth Circuit Court of Appeals if an appeal
is filed.”

(See Docket Entries dated February 17, 2009).
On March 25, 2009, the plaintiffs’ claims against several

defendants were dismissed on Order of Judge Charles A. Shaw upon a
finding that plaintiffs’ claims against those defendants were
frivolous.

(See Docket Nos. 7 and 8).

On May 26, 2009, the

remaining defendants Judith Silvey, Sarah Whitener, Unknown Menteer
and Eric Dunn answered plaintiffs’ complaint through counsel with
a Motion To Dismiss plaintiffs’ complaint.

On that same date each

of those defendants also filed a written notice, through counsel,
of their consent to have all further proceedings conducted by the
assigned Magistrate Judge.
The case proceeded forward with various motions filed by
the parties.

The motions were ruled by the Magistrate Judge.

Docket Nos. 15, 18, 19, 22, 23, 24, 25, 30, 32 and 33.

See

On July 24,

2009, the Magistrate Judge entered an Order granting defendants’

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Motion

To

Dismiss,

accompanied

by

a

Memorandum

and

Order.

Plaintiffs’ claims against all remaining defendants were dismissed.
(See Docket Nos. 36 and 37).
Dismissal, pro se.

Plaintiffs appealed the Order of

(See Docket No. 39).

Plaintiffs sought leave

to proceed on appeal in forma pauperis and their motion was granted
by the Magistrate Judge (see Docket Nos. 42 and 44).

On May 11,

2010, the Eighth Circuit Court of Appeals filed an Opinion and
Judgment affirming in part the dismissal of plaintiffs’ claims but
reversing

the

order

dismissing

claims

of

retaliation

against

defendants Silvey and Whitener and remanding the case for further
proceedings. (See Docket Nos. 59 and 60). Thereafter, on June 28,
2010, the Magistrate Judge ordered defendants Silvey and Whitener
to answer plaintiffs’ claims of retaliation.
On July 26, 2010, plaintiffs filed this pending motion.
The

plaintiffs

thereafter

continued

to

file

various

(non-

dispositive) motions which were ruled by the Magistrate Judge
pursuant to authority granted by the District Court pursuant to 28
U.S.C. § 636(b) and Rule 2.08, Local Rules of the Eastern District
of Missouri (See Docket Entry dated February 5, 2009).
As their grounds to revoke their consent previously given
for this cause to proceed before the Magistrate Judge for all
proceedings the plaintiffs state in their motion as follows:
1.
Plaintiffs has been (sic) and are
proceeding ‘pro se’ in the above named case
without the aid and assistance of a lawyer.
2.
As
‘pro
se’
litigants,
the
Plaintiffs did not understand the procedures

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regarding consenting to the hearing of their
case by a magistrate judge.
3.
That if the ‘Pro se’ plaintiffs had
been properly imformed (sic) of the procedures
plaintiffs’ consent to a magistrate judge
hearing this case would not been given (sic)
here.
4.
Plaintiffs assert that pursuant to
the laws the current case is filed under
plaintiffs are entitled to have said case
heard by a United States District Judge and in
the interest of justice the ‘Pro se’
plaintiffs should not be deprived of this
entitlement because of plaintiffs’ lack of
understanding the procedures.
28 U.S.C. § 636(c)(1) provides that,
Upon the consent of the parties, a fulltime United States magistrate judge or a parttime United States magistrate judge who serves
as a full-time judicial officer 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.
Such authority was conferred upon the Magistrate Judge in this case
by operation of the Local Rules of this Court.
2.08(A).

See Local Rule

28 U.S.C. § 636(c)(4) provides that,
The court may, for good cause shown on
its own motion, or under extraordinary
circumstances shown by any party, vacate a
reference of a civil matter to a magistrate
judge under this subsection.

There is no absolute right to withdraw consent to proceed before a
Magistrate Judge in a civil case once such consent is given. Dixon

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v. YLST, 990 F.2d 478, 480 (9th Cir. 1993).

Rather, a party must

show “extraordinary circumstances” for such withdrawal as required
by 28 U.S.C. § 636(c)(4).

Id.

See also, Carter v. Sea Land

Services, Inc., 816 F.2d 1018, 1020-21 (5th Cir. 1987).

The sole

ground asserted by plaintiffs for withdrawal of their previously
given consent is their pro se status, claiming that they did not
“understand the procedures” regarding consent and that if they had
been so aware they would not have given such consent.
A review of the pleadings in this case belies plaintiffs’
assertion that they are unsophisticated in their knowledge of the
law and of the Federal Rules of Civil Procedure.

The plaintiffs

have been well able to familiarize themselves with the law and
procedure to permit them to ably prosecute this case.

Plaintiffs

appealed, and prevailed on appeal, regarding adverse rulings made
by the court in this case.

Of particular note is the fact that

plaintiff Ernest C. Williams has filed numerous cases in this court
preceding

the

filing

Correctional Medical

of

the

instant

case.

See

Williams

v.

Systems, et al., 4:95CV848 FRB; Williams v.

Smith, et al., 4:06CV794 SNL; Williams v. Larkins, 4:06CV1069 TCM.
Two of those cases were randomly assigned to Magistrate Judges upon
filing.

Ernest

Williams

subsequently

consented

to

have

the

Magistrate Judge assigned in each case conduct all proceedings in
the case and each case proceeded to judgement before the assigned
Magistrate Judge.
In such circumstances the plaintiffs’ claim here, that
they did not in this case understand the significance of the giving
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of consent to proceed before the Magistrate Judge, rings hollow.
Plaintiffs’ claim of legal ignorance as grounds for their motion
simply is not credible.

It is just as likely that the motion was

prompted by the Magistrate Judge’s earlier adverse rulings in the
case.

This is not grounds upon which to grant the motion to

withdraw consent.

Carter v. Sea Land Services, Inc., 816 F.2d at

1020-21; Kilgo v. Ricks, 983 F.2d 189, 194 (11th Cir. 1993) (prior
adverse but erroneous rulings not grounds to order case reassigned
to another judge upon remand).
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion To Withdraw
Consent To A Magistrate Judge Hearing The Present Case, And For
Said Case To Be Heard By A United States District Judge (Docket No.
70) is denied.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 30th day of March, 2012.

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