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Anthony Brodzki v. United States of America

January 26, 2012


The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge



On November 1, 2011, Anthony Brodzki filed in forma pauperis a civil complaint against 17 the United States of America ("United States" or "government"), seeking $500 million in damages 18 for alleged harassment and torture by the United States government. Dkt. No. 1. ("Complaint"). 19

According to the complaint, the government "continually tort [sic] . . . and harass[ed]" plaintiff 20 using "water boarding techniques" because he is an "undocumented felon." Id. He claims the 21 government "want[s] [him] to sign [him]self in as sick." Id. He also references a rape that allegedly 22 took place when he was a child, which he claims the FBI refuses to investigate. Id. 23

This court granted plaintiff's request to proceed in forma pauperis. Dkt. No. 4. Plaintiff then 24 filed a motion to appoint counsel. Dkt. No. 8. Defendant has moved to dismiss for lack of subject 25 matter jurisdiction and failure to state a claim. Dkt. No. 9. Brodzki has not opposed the motion to 26 dismiss, but has instead filed letters requesting 1) an injunction; 2) a temporary restraining order; 27 and 3) an emergency temporary restraining order, all of which are virtually identical in character. 28

Dkt. Nos. 16, 17, 20. The defendant has opposed the first motion for an injunction. Dkt. No. 17. As the time for opposing defendant's motion to dismiss and plaintiff's first three motions have now 2 expired, the matters are deemed submitted. The court finds that a hearing is unnecessary at this time, 3 and VACATES the January 31 hearing. 4 7 the parties have consented to trial by a magistrate judge. 28 U.S.C. 636(c)(1); Bennett v. General 8



A magistrate judge may not enter an order disposing of a claim or defense of a party unless

Caster Serv. of N. Gordon Co., 976 F.2d 995, 997-999 (6th Cir. 1992). However, consent may be 9 inferred from the parties' conduct during litigation, Roell v. Withrow, 538 U.S. 580 (2003). In 10 right to be tried by a district judge, suppl[ied] the consent necessary for the Magistrate Judge's" jurisdiction." Id., 538 U.S. at 591. Where precisely along the "continuum of conduct" consent will 13 be implied is still an open question. See 14-73 Moore's Federal Practice - Civil § 73.03(6). 14

U.S.C. 636(c) and its consent is not at issue. The plaintiff has not expressly consented. Brodzki filed 16 two lawsuits against the United States, alleging very similar claims, in this district, both of which 17 are pending before the undersigned. In the first filed action, C11-05299-HRL, Brodzki v. United 18

2011 . Both he and the defendant have treated this action and C11-05299 as related or identical by 20 filing only one copy of their motions, with both case numbers written thereon. See, e.g., Dkt Nos. 8, 21 05299.*fn1 Since the court's receipt of the consent form in C11-05299, Brodzki has filed four motions 23 24

and several letters to the undersigned in both cases. See Dkt. Nos. 8, 14, 15, 16, 20, 21 (same for 2 C11-05299 and C11-05307). Indeed, he has acted identically in this case as he has in C11-05299. 3

4 before a magistrate judge after he has been instructed of his right to trial by a district judge. In Roell, 5 consent was implied in very particular and unusual circumstances. After explicitly advising the 6 parties of their right to consent to decline the magistrate judge's jurisdiction, but before all parties 7 had provided written consent, the magistrate judge proceeded all the way through trial upon referral 8 by the presiding district judge. Roell, 538 U.S. at 582-83. Once the plaintiff appealed, the appeals 9 court sua sponte remanded the case for determination of whether the parties had actually consented 10 to the magistrate judge's jurisdiction. Id. at 583-84.

In this case, the plaintiff mailed to the court a consent form within one week of filing his complaint. Because the court only received a consent form for C11-05299, it issued a reminder in 13 this action to the parties requiring them to file consent or declination forms by December 28, 2011. 14

Dkt. No. 13. Plaintiff did not file a consent form in C11-05307 following that notice, but he has 15 filed six motions and letters since the reminder was issued. Dkt. Nos. 14, 15, 16, 19, 22. All of the 16 same documents were also filed in C11-05299. Thus, this court can find no indication of some 17 intention by the plaintiff to consent in one matter and not the other. Instead, the court concludes that 18 plaintiff intended to send a consent form applicable in both actions, which was then stamped with 19 only one case number by the Clerk's Office. 20 21 magistrate judge pursuant to 28 U.S.C. 636(c), and the undersigned has the authority to issue 22 dispositive relief in this action. 23

A. For Lack of Subject Matter Jurisdiction

1. Legal Standard

A party may raise a lack of subject-matter jurisdiction by motion prior to filing an answer to 27 a complaint. FED. R. CIV. P. 12(b)(1). If the court determines that it does not have subject-matter 28 jurisdiction, it must dismiss the claim. FED. R. CIV. P. 12(h)(3). A lack of jurisdiction is presumed

Roell permits a magistrate judge to infer consent based on a litigant's willingness to proceed Therefore, the undersigned finds that all parties have consented to proceed before a


unless the party asserting jurisdiction establishes that it exists. Kokkonen v. Guardian Life Ins. Co. 2 of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may challenge either the sufficiency of 3 the pleadings to establish jurisdiction, or "the existence of subject matter jurisdiction in fact." 4

Thornhill Pub. Co. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). When a 5 defendant challenges the actual existence of subject matter jurisdiction, the plaintiff's allegations are 6 not taken as true and plaintiff bears the burden of proving that jurisdiction exists. Id.; Tosco Corp. v. 7

Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001). Because plaintiff is 8 proceeding pro se, the court liberally construes his complaint. Id. 9

Federal courts have original jurisdiction over civil actions "arising under the Constitution,

10 laws, or treaties of the United States." 28 U.S.C. ยง 1331. A claim "arises ...

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