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Ninth Circuit: Prisoner’s Withdrawal of Consent for Magistrate Judge Improperly Denied

by Kevin Bliss

The Ninth Circuit Court of Appeals ruled on August 28, 2019 that a California prisoner’s motion to withdraw consent to have a magistrate judge hear his case was improperly denied, and that dismissal of a defendant and a deliberate indifference claim were erroneous.

Corey Dwayne Gilmore was at the Kern Valley State Prison in July 2010 when he was shot with a non-lethal “sponge round,” pepper sprayed and assaulted by guards. Specifically, he claimed that during an altercation involving other prisoners, he was shot in the leg close to his knee, then pepper sprayed by two guards; he was then handcuffed and forced to walk, and the guards “repeatedly forced him into obstacles such as door frames and walls, breaking his glasses and injuring his face.” He was made to sit on hot pavement while medical treatment and decontamination from the pepper spray were delayed for 27 minutes.

Gilmore filed suit pro se in federal court against four guards involved in the incident: Chad Lockard, Cesar Lopez, John High­tower and J.J. Torres. His complaint raised claims of excessive use of force and delayed medical attention.

Gilmore consented to the jurisdiction of a magistrate judge on June 29, 2012, but the defendants did not. The case was later assigned to a district court judge for trial. The original magistrate judge retired and his replacement, Magistrate Stanley A. Boone, made a ruling on a pretrial motion that Gilmore claimed showed partiality to the defense. He moved to withdraw his consent for a magistrate judge on October 19, 2015. The defendants then agreed to a magistrate on September 1, 2016. Magistrate Boone subsequently denied Gilmore’s motion to withdraw his consent, finding he had not shown “good cause or extraordinary circumstances.”

In the meantime, Gilmore received notification on February 24, 2014, from the Deputy Attorney General representing Lopez and Hightower, of a suggestion of death for defendant Torres, meaning he had died. Gilmore filed a motion construed by the magistrate judge as a motion to substitute the deceased with a representative of his estate. Boone ruled that it was Gilmore’s responsibility to identify a successor, and he had 90 days to do so. After several unsuccessful motions attempting to identify Torres’ widow as the proper successor, Torres and Gilmore’s claim of deliberate indifference were dismissed from his suit.

Magistrate Boone subsequently conducted a trial, and the jury found in favor of the defendants on March 2, 2017. Gilmore appealed.

The Ninth Circuit held that magistrate judge jurisdiction is accepted only upon the consent of all parties. The defendants did not agree to a magistrate until after Gilmore filed a motion to withdraw consent; therefore, the district court erred in denying his motion.

The appellate court noted that “a party need not satisfy the good cause or extraordinary circumstances standard provided in [28 U.S.C.] § 636(c)(4) in order to withdraw magistrate judge consent before all parties have consented. Because the magistrate judge erroneously required such a showing by Gilmore, and because under the circumstances his motion to withdraw consent should have been granted, we conclude that the magistrate judge lacked jurisdiction to conduct the trial.”

The Court of Appeals also held that the 90-day period to substitute a defendant is activated when a suggestion of death is served on all parties and nonparty successors in the case. Torres’ successor was not served, thus the 90-day substitution period was not activated. Further, the Court noted it was not Gilmore’s responsibility to locate Torres’ successor, but that burden fell on the party who filed the original suggestion of death. Consequently, the district court had erred in dismissing Torres and the deliberate indifference claim.

The Ninth Circuit reversed the denial of Gilmore’s withdrawal of consent and the dismissal of Torres and the deliberate indifference claim, finding that Magistrate Boone did not have jurisdiction. Accordingly, the jury verdict also was reversed and the case remanded, where it remains pending.

Gilmore was represented on appeal by attorneys Douglas A. Smith and Maximillian W. Hirsch. See: Gilmore v. Lockard, 936 F.3d 857 (9th Cir. 2019). 

Related legal case

Gilmore v. Lockard