C. Dwayne Gilmore, AKA Cary D. Gilmore, Plaintiff-Appellant,
C. Lockard, C/O; C. Lopez, C/O; J. Hightower, C/O, Defendants-Appellees.
and Submitted June 13, 2019, San Francisco, California
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.
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.
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.
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
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.
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.
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.
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.
SMITH, CIRCUIT JUDGE:
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.
reverse on several grounds.
AND PROCEDURAL BACKGROUND
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
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.
Motion to Withdraw Consent to Magistrate Judge
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 ...