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Tate v. Woodford

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 4, 2008

LARRY TATE, PLAINTIFF,
v.
JEANNE WOODFORD, ET AL., DEFENDANTS.

The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge

ORDER RE MOTION (DOC 34)

On June 30, 2008, findings and recommendations were entered, recommending that this action be dismissed for failure to state a claim upon which relief could be granted. Plaintiff was granted thirty days in which to file objections. On July 28, 2008, Plaintiff filed a document titled as a "Motion for Research to Overturn Bias Judgments."

In this motion, Plaintiff contends that because he declined to consent to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), the Magistrate Judge should be recused from this action. Plaintiff's characterization of his decline to jurisdiction of the Magistrate Judge is that he "denounced" the choice of Magistrate Judge, but "I was still appointed one." Plaintiff contends that "on several occasions" he requested to have the undersigned removed from this case. A review of the docket reveals that no such motion has been filed in this case.

Plaintiff is advised that this action has been assigned to a U.S. District Judge and referred to a U.S. Magistrate Judge pursuant to Local Rule 72-302 and 28 U.S.C. § 636(b)(1). Plaintiff was given the option of choosing the exercise of Magistrate Judge jurisdiction. Should Plaintiff have chosen that option, the assigned Magistrate Judge would have been assigned as the presiding judge. Because Plaintiff chose not to consent to Magistrate Judge jurisdiction, this action remained assigned to a U.S. District Judge, and referred to the undersigned Magistrate Judge. There is no authority for the proposition that a party may request removal of a District Judge or Magistrate Judge as a matter of right. Plaintiff's motion should therefore be denied. The court will also grant Plaintiff an extension of time in which to file objections to the findings and recommendations.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion is denied.

2. Plaintiff is granted an extension of time of thirty days from the date of service of this order in which to file objections to the findings and recommendations.

IT IS SO ORDERED.

20080804

© 1992-2008 VersusLaw Inc.



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