Appellant Dixon, a state prisoner, sued under 42 U.S.C. § 1983, claiming that prison officials denied him adequate medical treatment in violation of his Eighth Amendment rights. The case went to trial. Thе magistrate judge granted defendants’ motion for a directed verdict. Dixon appеals, claiming that: (1) he was entitled to have an Article III judge, not a magistrate judge, try his cаse; (2) he was denied the right to call witnesses at his trial; and (3) the physical restraints apрlied to him during trial recesses interfered with his preparation. We affirm.
I. Jurisdiction over the Appeal.
When Dixon consented to trial before a magistrate judge, he also consented to have any appeal heard by the district court.
See
28 U.S.C. § 636(c)(4). Although his notice of appeal specified that he was appealing to the district court, his appeal was referred to this court, briefed, and calendared for argument without objection. Since thе consent to district court appeal “does not create a permаnent and nonwaivable jurisdictional bar to appeal to this court,” we have jurisdiсtion which we may, and in this case do, exercise in the absence of objection.
Ridings v. Lane County, Or.,
II. Trial by the Magistrate Judge.
A party to a federal civil case has, subject to some exceptions, a constitutional right to proceed before an Article III judge.
Pacemaker Diаgnostic Clinic of America, Inc. v. Instromedix, Inc.,
Once a сivil case is referred to a magistrate judge under section 636(c), the referencе can be withdrawn by the court only “for good cause shown on its own motion, or under extraordinary circumstances shown by any party.” 28 U.S.C. § 636(c)(6); Fed.R.Civ.P. 73(b);
Fellman v. Fireman’s Fund Ins. Co.,
Dixon made no motion to vacate the reference to the magistrate judge for “extraordinary circumstances,” and the court did not sua sponte find “good сause” to vacate the reference. See 28 U.S.C. § 636(c)(6). The magistrate judge was therefore correct in proceeding with the trial of Dixon’s case.
III. Right to Call Witnesses.
Dixon claims the district court denied his right to call witnesses in support of his claim. Dixon wanted to call twеnty-one witnesses at trial, but was unable to. give the magistrate judge a good reason. Hе eventually agreed with the magistrate judge’s suggestion that only two witnesses, Dr. Shepard and Dr. Poulos, were necessary. Dr. Shepard testified at the trial, but Dr. Poulos was unavailable bеcause of his medical condition. The magistrate judge discussed with Dixon the possibility of calling Dr. Johnson, but Dixon had not subpoenaed Dr. Johnson or Dr. Poulos or deposited the required witness fees and expenses. The magistrate judge told Dixon that the court could not pay to compensate the witness, and that Dr. Johnson’s report would have to dо. The magistrate judge correctly ruled that 28 U.S.C. § 1915, the
in forma pauperis
statute, does not waive payment of fees or expenses for witnesses.
Tedder v. Odel,
IV. Physical Restraint During Recesses.
Dixon claims that the magistrate judge denied his “right to prepare his case” by refusing his request to' have his hands unshackled during court recesses. Dixon was allowed access to his legal materials during recesses, and acknowledged to the magistrate judge that he could read his materials even with his hands shackled. The only prejudice he asserted was his inability to “go way over there and find a page real quick” and to “move stuff around and different things.” The magistrate judge asked the guards аbout alternative arrangements, and they expressed concern about their аbility to control Dixon if he did not cooperate in being shackled again. The magistrate judge did not abuse his discretion.
AFFIRMED.
Notes
. The title was changed from “magistrate” to "magistrate judge.” Act Dec. 1, 1990, Pub.L. 101-650, Title III, § 321, 104 Stat. 5117.