United States District Court, E.D. California
ORDER FOR ASSIGNMENT OF DISTRICT JUDGE FINDINGS AND
RECOMMENDATIONS ON OBJECTIONS TO ORDER DENYING REQUEST TO
WITHDRAW CONSENT TO MAGISTRATE JUDGE JURISDICTION (ECF No.
15) FOURTEEN (14) DAY OBJECTION DEADLINE
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to 28 U.S.C.
§ 1983. The action proceeds against Defendant Musleh on
Plaintiff’s Eighth Amendment failure to protect claim.
Defendant Musleh has not yet appeared in this action.
6, 2015, Plaintiff consented to have a United States
Magistrate Judge conduct all further proceedings in this
case, including trial and entry of final judgment, pursuant
to 28 U.S.C. § 636(c)(1). (ECF No. 6.) On May 13, 2016,
after the Court screened Plaintiff’s first amended
complaint and dismissed several claims and defendants,
Plaintiff filed a request to withdraw his consent to
Magistrate Judge jurisdiction. (ECF No. 10.) The undersigned
denied the motion on the ground that Plaintiff failed to
present good cause or extraordinary circumstances to support
his request. Dixon v. Ylst, 990 F.2d 478, 479 (9th
Cir. 2003); see also 28 U.S.C. § 636(c)(4).
(ECF No. 14.)
the Court are Plaintiff’s objections to the order
denying his request to withdraw his consent to Magistrate
Judge jurisdiction. (ECF No. 15.) Plaintiff contends that the
undersigned is without authority to rule on his request, and
that such requests must instead be resolved by a district
judge pursuant to Federal Rule of Civil Procedure 73(b)(3).
Ninth Circuit has affirmed the authority of a Magistrate
Judge to rule on a motion to withdraw consent. E.g.,
Dixon, 990 F.2d at 478. Nevertheless, as Plaintiff
now requests review by a district judge, and as the district
judge retains residual authority over this matter for
purposes of resolving such a request, Fed.R.Civ.P. 73(b)(3);
12 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 3071.3, at 411 (2d
ed.) (“Even when the parties consent to the exercise of
case-dispositive jurisdiction by a magistrate judge, however,
the district judge retains “residual authority, ”
under the statute and under Rule 73(b)(3), to vacate the
reference of the proceedings.” (footnote omitted)), the
Court will order that a district judge be assigned for
purposes of resolving Plaintiff’s request. As to the
merits of Plaintiff’s request, the undersigned issues
the following findings and recommendations.
party to a federal civil case has, subject to some
exceptions, a constitutional right to proceed before an
Article III judge.” Dixon v. Ylst, 990 F.2d
478, 479 (9th Cir. 2003). This right can be waived, allowing
parties to consent to have any and all further proceedings
conducted before a Magistrate Judge. Id. at 479-80.
There is no absolute right to withdraw consent to proceeding
before a Magistrate Judge. Id. at 480. Instead, a
motion to withdraw consent may be granted only for good cause
or a showing of extraordinary circumstances. Id.;
see also 28 U.S.C. § 636(c)(4).
stated in the Court’s prior order, Plaintiff’s
request set forth no basis for seeking to withdraw his
consent. His objections state only that the undersigned did
not construe his pleading liberally when screening the
complaint. This disagreement with the Court’s screening
order does not constitute extraordinary circumstances and is
not an adequate ground for seeking to withdraw consent.
See Graham v. Runnels, No. CIV S–
07–2291 GGH P, 2010 WL 3941428, *2 (E.D. Cal. Oct. 5,
2010) (denying reconsideration of order denying
plaintiff's motion to withdraw consent); M & I
Marshall & Ilsley Bank v. McGill, No.
10–CV–1436–PHX–ECV, 2011 WL 2464184,
at *2 (D. Ariz. Jun. 21, 2011) (denying motion to withdraw
consent stating that disagreement with magistrate judge's
rulings is not an extraordinary circumstance); see also
Sanches v. Carrollton–Farmers Branch Independent School
Dist., 647 F.3d 156, 177–72 (5th Cir. 2011)
(denying reconsideration of order denying plaintiff's
motion to withdraw consent stating that dissatisfaction with
a magistrate judges' decision does not constitute
extraordinary circumstances). Accordingly, the undersigned
will recommend that the request to withdraw consent be
Clerk of Court is HEREBY ORDERED to assign a district judge
to this action. Furthermore, it is HEREBY RECOMMENDED that:
1. Plaintiff’s request to withdraw his consent (ECF No.
15) be DENIED; and
2. The matter be referred back to the undersigned for all
further proceedings pursuant to 28 ...