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Gilmore v. Lockard

United States Court of Appeals, Ninth Circuit

August 28, 2019

C. Dwayne Gilmore, AKA Cary D. Gilmore, Plaintiff-Appellant,
C. Lockard, C/O; C. Lopez, C/O; J. Hightower, C/O, Defendants-Appellees.

          Argued and Submitted June 13, 2019, San Francisco, California

          Appeal from the United States District Court for the Eastern District of California D.C. No. 1:12-cv-00925-SAB, Stanley Albert Boone, Magistrate Judge, Presiding

          Douglas A, Smith (argued) and Maximillian Wolden Hirsch (argued), Los Angeles, California, for Plaintiff-Appellant.

          Martha P. Ehlenbach (argued), Deputy Attorney General; Misha D. Igra, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Defendants-Appellees.

          Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit Judges, and JED S. RAKOFF, [*] District Judge.

         SUMMARY [**]

         Prisoner Civil Rights

         The panel reversed the district court's jury verdict in favor of defendant prison officials and remanded for further proceedings in an action brought by a California state prisoner pursuant to 42 U.S.C. § 1983 alleging that defendants used excessive force against him and delayed his access to medical assistance.

         Plaintiff consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Nearly two years later, defendants declined consent, and the case was assigned to a district court judge. Thereafter, the magistrate judge originally assigned to this case retired, and another magistrate judge took over the case to address pretrial motions. Following an adverse ruling on a motion to compel, plaintiff filed a motion to withdraw his consent to magistrate judge jurisdiction. The magistrate judge denied plaintiff's motion, stating that, pursuant to 28 U.S.C. § 636(c)(4), a request to withdraw consent will be granted only upon a showing of good cause or extraordinary circumstances, and that disagreement with a ruling did not amount to good cause. Defendants subsequently consented to magistrate judge jurisdiction, almost four years after plaintiff's consent.

         The panel held that a party need not satisfy the good cause or extraordinary circumstances standard provided in § 636(c)(4) in order to withdraw magistrate judge consent before all parties have consented. The panel held that because the magistrate judge erroneously required such a showing by plaintiff, and because under the circumstances his motion to withdraw consent should have been granted, the magistrate judge lacked jurisdiction to conduct the trial.

         While plaintiff's case was pending, the Attorney General notified him that one of the defendants had died, but did not identify a personal representative for the defendant's estate. The district court, adopting the magistrate judge's recommendation, dismissed the deceased defendant from the action, along with plaintiff's Eighth Amendment deliberate indifference claim. The district court held that additional attempts to identify a representative would be futile due to Federal Rule of Civil Procedure 25(a)'s 90-day filing requirement.

         The panel held that the magistrate judge erred by placing the burden on plaintiff to identify the deceased defendant's successor or personal representative. The panel concluded that Rule 25(a)'s 90-day window was not triggered, and therefore the panel reversed the dismissal of the deceased defendant, and reversed the dismissal of plaintiff's deliberate indifference to medical needs claim.

         The panel stated that because it was reversing the jury verdict and remanding for further proceedings based on the magistrate judge's lack of jurisdiction, it was not necessary to consider plaintiff's evidentiary challenges in detail. However, for the guidance of the trial court on remand, the panel noted that the probative value of defendants' expert testimony about gangs to which plaintiff had no connection was minimal and was substantially outweighed by the danger of unfair prejudice.



         Plaintiff Cary Dwayne Gilmore filed an action pursuant to 42 U.S.C. § 1983, alleging civil rights violations by various prison officials (together, Defendants) following an incident at Kern Valley State Prison (Kern Valley). A jury ultimately ruled against Gilmore, finding that Defendants did not use excessive force during the alleged incident.

         We reverse on several grounds.


         I. Factual Background

         Gilmore alleged that on July 8, 2010, after an alarm sounded due to a disturbance created by two non-party inmates at Kern Valley, he was beginning to lie down- "prone out"-when Defendant Chad Lockard shot him with a sponge round in the right leg near his knee. Lockard then directed Defendant Cesar Lopez to check on Gilmore, who was on the ground after being shot. Gilmore claimed that Lopez then began to pepper spray him. Defendant John Hightower also allegedly walked over and pepper sprayed Gilmore, until both he and Lopez had emptied their pepper spray cans. Afterwards, Defendant J.J. Torres handcuffed Gilmore and forced him to walk despite his knee injury. Gilmore alleged that Torres repeatedly forced him into obstacles such as door frames and walls, breaking his glasses and injuring his face. Torres purportedly laughed and said, "You gotta watch where you're going Gilmore!" Gilmore claimed that Torres then made him sit on hot asphalt for 27 minutes while he awaited medical attention, exacerbating the "burning" from the pepper spray. Finally, when Torres agreed to decontaminate Gilmore, he forced Gilmore to kneel while he sprayed him with water. Afterwards, Gilmore received medical attention for the gunshot wound.

         II. Procedural Background

         Gilmore filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendants used excessive force when responding to the incident at Kern Valley, and subsequently delayed his access to medical assistance. On March 2, 2017, after trial, a jury found in favor of Defendants.

         A. Motion to Withdraw Consent to Magistrate Judge Jurisdiction

         On June 29, 2012, Gilmore consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Nearly two years later, on May 19, 2014, Defendants declined consent, and the case was then assigned to District Judge Lawrence J. O'Neill. The district court rejected Gilmore's objection to the reassignment, noting that "under § 636(c), if all parties do not consent to Magistrate Judge jurisdiction, a District Judge must be assigned as presiding judge." Thereafter, the magistrate judge originally ...

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