C. Gilmore v. C. Lockard, 936 F.3d 857

Background

Prisoner Cary Dwayne Gilmore sued prison officials under 42 U.S.C. § 1983 alleging excessive force (sponge-round shooting, pepper spray, rough handcuffing, delayed medical care) after a July 8, 2010 incident at Kern Valley State Prison.
Gilmore initially consented to magistrate-judge jurisdiction in 2012; defendants declined in 2014 and the case was assigned to a district judge. Gilmore moved to withdraw consent after an adverse pretrial ruling; the magistrate denied the motion requiring a showing of "good cause."
Defendants later consented to magistrate-jurisdiction for Magistrate Judge Boone, who then presided over pretrial matters and trial; a jury found for defendants.
Defendant J.J. Torres allegedly died before being served; a Deputy AG notified the court of Torres’s death but did not identify or serve a personal representative; the magistrate denied Gilmore’s motions to substitute and dismissed Torres under Rule 25(a).
On appeal the Ninth Circuit reversed: it held the magistrate lacked § 636(c) authority to conduct trial (because not all parties had consented when Gilmore sought to withdraw), reversed dismissal of Torres and the deliberate-indifference claim (Rule 25(a) 90-day period never triggered), and cautioned about admission of inflammatory gang testimony if retried.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether magistrate judge had jurisdiction to try the case under 28 U.S.C. § 636(c) after Gilmore attempted to withdraw consent	Gilmore argued he sought to withdraw consent before all parties had consented, so § 636(c)(4) "good cause" standard did not apply and the magistrate lacked full § 636(c) jurisdiction	Defendants contended magistrate retained § 636(c) jurisdiction and Gilmore had to show good cause to withdraw consent	Court held magistrate lacked § 636(c) jurisdiction at the time; withdrawal before all parties consented need not meet § 636(c)(4) good-cause standard; reversal of jury verdict and remand.
Whether Rule 25(a)(1) 90-day substitution period was triggered by the AG’s notice of Torres’s death	Gilmore argued the AG’s notice did not properly serve or identify Torres’s successor/representative, so the 90-day period never began and dismissal was improper	Defendants argued the notice triggered Rule 25(a) and plaintiff bore burden to identify substitute, making substitution untimely	Court held the notice did not satisfy Rule 25(a) because successors/representatives were not identified or served; 90-day period not triggered; reversal of dismissal of Torres and deliberate-indifference claim.
Whether substitution now would be futile (statute of limitations) or unduly burdensome	Gilmore argued substitution should be allowed because the claim was timely filed before Torres’s death and substitution relates back	Defendants argued substitution would be futile (statute-barred) and burdensome	Court held substitution would not be futile because relation-back preserves the claim; burden/other defenses are for the district court on remand.
Admissibility of gang-related expert testimony	Gilmore argued gang testimony was prejudicial and minimally probative	Defendants relied on relevance of custodial context and safety issues	Court warned much of Officer Hunter’s testimony (unrelated gang activity, sensational claims) was of marginal probative value and likely unfairly prejudicial under Rule 403 and should be excluded on retrial.

Key Cases Cited

Irwin v. Mascott, 370 F.3d 924 (9th Cir.) (standard for reviewing magistrate jurisdiction)
Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537 (9th Cir. 1984) (parties may waive right to Article III adjudication by consent under § 636(c))
Carter v. Sea Land Servs., Inc., 816 F.2d 1018 (5th Cir.) (discusses strategic withdrawal of consent and concerns about forum shopping)
Barlow v. Ground, 39 F.3d 231 (9th Cir.) (Rule 25(a) service requirements and when 90-day period is triggered)
Rende v. Kay, 415 F.2d 983 (D.C. Cir.) (requires suggestion of death to identify successor/representative before triggering 90-day period)
Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir.) (Rule 25(a) requires service on parties and appropriate nonparties to commence 90-day period)
Flores v. City of Westminster, 873 F.3d 739 (9th Cir.) (relation-back principles for timely claims after substitution)
Estate of Diaz v. City of Anaheim, 840 F.3d 592 (9th Cir.) (gang evidence is often highly prejudicial)
Kennedy v. Lockyer, 379 F.3d 1041 (9th Cir.) (gang-involvement evidence typically prejudicial)
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (U.S. 1987) (service requirement for personal jurisdiction)
Ex parte Connaway, 178 U.S. 421 (U.S. 1900) (historical support for substitution where death occurs before or after service)