C. DWAYNE GILMORE, AKA Cary D. Gilmore, Plaintiff-Appellant, v. C. LOCKARD, C/O; C. LOPEZ, C/O; J. HIGHTOWER, C/O, Defendants-Appellees.
No. 17-15636
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 28, 2019
D.C. No. 1:12-cv-00925-SAB
Opinion by Judge Milan D. Smith, Jr.
FOR PUBLICATION
Appeal from the United States District Court for the Eastern District of California Stanley Albert Boone, Magistrate Judge, Presiding
Argued and Submitted June 13, 2019 San Francisco, California
Filed August 28, 2019
Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit Judges, and JED S. RAKOFF,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
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
Plaintiff consented to the jurisdiction of a magistrate judge pursuant to
The panel held that a party need not satisfy the good cause or extraordinary circumstances standard provided in
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
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.
COUNSEL
Douglas A. Smith (argued) and Maximillian Wolden
OPINION
M. SMITH, Circuit Judge:
Plaintiff Cary Dwayne Gilmore filed an action pursuant to
We reverse on several grounds.
FACTUAL AND PROCEDURAL BACKGROUND
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
A. Motion to Withdraw Consent to Magistrate Judge Jurisdiction
On June 29, 2012, Gilmore consented to the jurisdiction of a magistrate judge pursuant to
On October 19, 2015, following an adverse ruling on a motion to compel, Gilmore filed a motion to withdraw his consent to magistrate judge jurisdiction. The magistrate judge stated that, pursuant to
On September 1, 2016, over four years after Gilmore consented to magistrate judge jurisdiction, Defendants finally gave their consent to Magistrate Judge Boone conducting all further proceedings. Pursuant to
B. Motion to Substitute Defendant Torres
On February 24, 2014, the Deputy Attorney General (AG) representing Lopez and Hightower notified Gilmore that Torres had died, but did not identify a personal representative for Torres‘s estate. The notice stated, “Counsel for Defendant Torres is informed that the Defendant has died.” Defendants now claim that the AG sent the notice in error because the AG represented only Lopez and Hightower at the time. On March 5, 2014, Gilmore filed an “Opposition and Reply to Notice of Defendant‘s Death,” which the magistrate judge construed as a motion to substitute parties. The magistrate judge denied this motion without prejudice, noting that “Plaintiff ... is responsible for identifying and finding J.J. Torres’ heirs or representatives.”
Gilmore then filed a second substitution motion, asserting that counsel for Torres—the AG, as stated in the notice—was the representative of the estate, and requesting that the Deputy AG assigned to the case be served with his motion. The magistrate judge denied the motion, again asserting that Gilmore was responsible for providing the name and address of Torres‘s heir or representative. Gilmore then filed three additional substitution motions in an attempt to provide information about Mrs. Elizabeth Torres, Torres‘s widow, whom Gilmore claimed was Torres‘s heir. After the magistrate judge allowed limited discovery concerning the proper party to substitute, Gilmore offered as proof two obituaries indicating that Torres was survived by his wife, as well as copies of the white pages indicating Mrs. Torres‘s address. The magistrate judge again denied Gilmore‘s substitution motions because he found the evidence insufficient.
On November 20, 2014, Gilmore filed his final motion to substitute parties, which included a declaration in addition to the evidence previously submitted. Gilmore‘s declaration described a conversation between Gilmore‘s then-fiancée, Thalesha Denise Clay, and Mrs. Torres, wherein the latter confirmed that she was the administrator of Torres‘s estate. In further briefing, Gilmore disclosed that Clay had posed as a Department of Veterans Affairs employee in order to solicit answers from Mrs. Torres. The magistrate judge recommended denying Gilmore‘s motion with prejudice, noting that the declaration was inadmissible hearsay; that the remaining evidence was insufficient to identify Mrs. Torres as Torres‘s legal representative;
The district court adopted the magistrate judge‘s recommendation and dismissed Torres from the action, along with Gilmore‘s Eighth Amendment deliberate indifference claim.
ANALYSIS
Gilmore argues that the magistrate judge committed several reversible errors over the course of the multi-year litigation. We address each in turn.
I. Magistrate Judge Jurisdiction
Gilmore first argues that the magistrate judge lacked jurisdiction to conduct the trial pursuant to
We review de novo whether a magistrate judge had jurisdiction over a case. Irwin v. Mascott, 370 F.3d 924, 929 (9th Cir. 2004). “[T]he federal litigant has a personal right, subject to exceptions in certain classes of cases, to demand Article III adjudication of a civil suit.” Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984). Like other fundamental rights, this right can be waived: “When authorized under
Here, Gilmore originally consented to magistrate judge jurisdiction on June 29, 2012. Defendants then declined magistrate judge jurisdiction on May 19, 2014. Although Defendants later consented to magistrate judge jurisdiction, prior to that decision Gilmore sought to withdraw his consent, “believ[ing] that Magistrate Judge Stanley A. Boone ha[d] shown partiality for defendants and will not be an impartial magistrate.” The magistrate judge denied Gilmore‘s motion, citing
Gilmore argues that because he sought to withdraw consent before all parties consented to magistrate judge jurisdiction, the civil matter was not yet properly before the magistrate judge, and so the “good cause” standard under
The text of the statute suggests that Gilmore is correct, and that a showing of good cause is not required before all parties have consented.
Defendants claim that the magistrate judge retained jurisdiction pursuant to
There is a distinction between assignment of an action to a Magistrate Judge pursuant to
28 U.S.C. § 636(b) and reassignment of an action to a Magistrate Judge pursuant to28 U.S.C. § 636(c) .... When an action is filed, it is assigned to a United States District Judge and a United States Magistrate Judge. If all the parties consent to Magistrate Judge jurisdiction pursuant to§ 636(c) , the action is reassigned by the United States District Judge assigned to the case to the Magistrate Judge assigned to the case, and the Magistrate Judge conducts all further proceeding[s], including trial. When plaintiff filled out the consent/decline form and checked the box marked “Consent,” he was consenting pursuant to section 636(c). However, [at that point] plaintiff‘s consent did not result in reassignment of this action to a Magistrate Judge. Cases are reassigned to a Magistrate Judge only if all parties consent. If one or more parties decline Magistrate Judge jurisdiction, the District Judge will resolve all dispositive matters and conduct the trial, if there is one.
Page v. California, No. 1:06-cv-01409 LJO DLB PC, 2008 WL 3976933, at *1 (E.D. Cal. Aug. 20, 2008). Gilmore filed his motion to withdraw consent on October 19, 2015—after Defendants denied consent, after the case was assigned to District Judge Lawrence J. O‘Neill, and before Defendants later consented to magistrate judge jurisdiction. Therefore, the magistrate judge did not have jurisdiction pursuant to
We must necessarily consider the practical implications of our holding, one of which was highlighted by one of our sister circuits in Carter v. Sea Land Services, Inc., 816 F.2d 1018 (5th Cir. 1987). There, the Fifth Circuit stated:
[N]othing in the statute or the legislative history [] requires continuing expressions of consent before a magistrate can exercise authority under a valid reference. Nor will we accept the slippery-slope invitation to read into the statute a rule that would allow a party to express conditional consent to a reference, thereby obtaining what amounts to a free shot at a favorable outcome or a veto of an unfavorable outcome. Any such rule would allow the party to hold the power of consent over the magistrate like a sword of Damocles, ready to strike the reference should the magistrate issue a ruling not quite to the party‘s liking.
Id. at 1020–21. Allowing a party to withdraw consent without utilizing the good cause standard could indeed allow a litigant to “shop” between a magistrate and a district judge. The facts of this case suggest that might have been precisely what Gilmore sought to do when he filed his motion to withdraw after receiving an unfavorable ruling.
Importantly, however, Carter is distinguishable. There, as in almost every case where a court reviews a ruling on a motion to withdraw consent,2 both parties had consented
But if the good cause or extraordinary circumstances standard is not required, then how should a court adjudicate a motion to withdraw consent in such cases? We conclude that this is a decision best left to the district court‘s discretion, and we note that the majority of courts have allowed such withdrawal in similar cases. See, e.g., Osotonu v. Ringler, No. CIV S-10-2964 DAD P, 2011 WL 1047730, at *5 (E.D. Cal. Mar. 18, 2011); Bowman v. Schwarzenegger, No. CIV S-07-2164 FCD KJM P, 2009 WL 799274, at *1 (E.D. Cal. Mar. 23, 2009), aff‘d on other grounds, 334 F. App‘x 850 (9th Cir. 2009) (“Because this action has not yet been reassigned to the [magistrate judge] for all purposes including trial, plaintiff may withdraw his consent without demonstrating good cause or extraordinary circumstances“); Page, 2008 WL 3976933, at *2. We find these cases instructive. Gilmore, a pro se plaintiff, filed a timely motion to withdraw consent. There was no possible prejudice to Defendants at the time Gilmore sought withdrawal, nor was it inconvenient to the district court since the case had already been assigned to District Judge O‘Neill. Cf. United States v. Mortensen, 860 F.2d 948, 950 (9th Cir. 1988) (holding, in the context of a misdemeanor trial before a magistrate judge pursuant to
In summary, a party need not satisfy the good cause or extraordinary circumstances standard provided in
II. Substitution of Parties
The magistrate judge denied Gilmore‘s repeated motions to substitute Defendant
“The proper interpretation of
Before addressing Gilmore‘s arguments, Defendants suggest that
The purpose behind
Indeed, the Supreme Court inferred as much more than a century ago, finding “no reason why the representative of a deceased party should not be brought in by the same procedure, whether the death of a party occur before or after service,” when interpreting a similar California state procedural rule. Ex parte Connaway, 178 U.S. 421, 431 (1900). Although our court has not yet extended Connaway to the federal rule, we observe that the decisions of various out-of-circuit courts imply that such an application is proper. See, e.g., Ransom v. Brennan, 437 F.2d 513, 518 (5th Cir. 1971) (“[I]f no in personam jurisdiction had been acquired over the original party, then the substitution of a new party under
Gilmore challenges whether the 90-day substitution window was triggered when he received notice from the AG of Torres‘s death, and whether it was his burden to identify Torres‘s personal representative or successor.
If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent‘s successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.
. . .
A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting death must be served in the same manner.
In Barlow, we did not reach the question of whether “the suggestion of death [must] be served upon the nonparty successors or representatives of the estate when the appropriate persons could not be ascertained at the time the suggestion of death was made.” 39 F.3d at 234. Here, both parties appear to agree that the successors or representatives of Torres‘s estate were not easily ascertainable. But although Barlow did not answer this key question, other circuits have suggested that nonparty successors or representatives of the deceased party must be personally served—or, at a minimum, identified—in order to trigger the 90-day period. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985) (“Rule 25(a)(1) directs that both parties and appropriate nonparties be served with the suggestion of death to commence the 90-day substitution period, for the rule seeks ‘to assure the parties to the action and other concerned persons of notice of the death so that they may take appropriate action to make substitution for the deceased party.‘“) (quoting 3B J. Moore & J. Kennedy, Moore‘s Federal Practice ¶ 25.06 (2d ed. 1982)); Rende v. Kay, 415 F.2d 983, 985–86 (D.C. Cir. 1969) (“[T]he Rule, as amended, cannot fairly be construed ... to make [decedent‘s counsel‘s] suggestion of death operative to trigger the 90-day period even though he was neither a successor nor representative of the deceased, and gave no indication of what person was available to be named in substitution as a representative of the deceased. [Such a] construction would open the door to a tactical maneuver to place upon the plaintiff the burden of locating the representative of the estate within 90 days.” (footnote omitted)); but see Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 470 (2d Cir. 1998) (“The rule does not require that the statement identify the successor or legal representative; it merely requires that the statement of death be served on the involved parties.“).
In light of Rule 25(a)‘s function, these cases attempted, with varying results, to balance the importance of notice to both parties and nonparties—which ensures that rights and causes of action are protected—with the burden of providing such notice. In Barlow and Fariss, the successors or representatives were easily ascertainable when the respective suggestions of death were provided, and so the courts found it appropriate to require such notice in order to trigger the 90-day period. In Rende, the D.C. Circuit was particularly concerned with placing the burden on a plaintiff to identify the defendant‘s successor or representative after defendant‘s counsel filed a suggestion of death. The D.C. Circuit ultimately held that the suggestion of death must identify the representative or successor before the 90-day period is triggered. 415 F.2d at 985–86. Finally, in Unicorn Tales, the Second Circuit disagreed with the D.C. Circuit and found a suggestion of death sufficient to trigger the 90-day window, even if no successor or representative was identified, because
Finding Rende to be better reasoned, we hold that the AG‘s notice of death did not trigger the 90-day window. The AG neither served notice to any nonparties, nor identified such nonparties. Either circumstance would have put Gilmore on notice as to Torres‘s successor or personal representative, information that he ultimately struggled to obtain despite use of limited discovery and repeated motions.5 Whether or not the AG was actually Torres‘s counsel, she was significantly better positioned than Gilmore to ascertain Torres‘s successor since Defendants Lopez and Hightower were indisputably her clients, and given her existing relationship with the California Department of Corrections and Rehabilitation (CDCR). Shifting the burden to Gilmore to identify Torres‘s successor or representative would defeat the purpose of
Furthermore, nothing in Barlow suggests that where the party filing the suggestion of death has not yet confirmed the proper party for substitution, the burden of finding and serving the substituted party should necessarily shift to the other party. Instead, Barlow is better understood as interpreting the 90-day rule judiciously: where a party files a suggestion of
Accordingly, because we hold that the magistrate judge erred by placing the burden on Gilmore to identify Torres‘s successor or personal representative, we conclude that
Defendants argue that substitution of Mrs. Torres at this stage, if she is indeed the proper party, would be futile due to the statute of limitations, as well as unduly burdensome. But substitution would not be futile. Defendants misunderstand the effect of a Rule 25(a) substitution—Mrs. Torres would not be a “new” party. Instead, the claim against Torres would survive because it was timely filed before his death, and thus would relate back to the date of the suit‘s filing. See Flores v. City of Westminster, 873 F.3d 739, 761 (9th Cir. 2017). Defendants’ argument that substitution would be unduly burdensome might be persuasive, but it is not one that we are able to adjudicate. It is instead a matter for the district court to consider on remand.
III. Expert Testimonies
Because we reverse the jury verdict and remand for further proceedings based on the magistrate judge‘s lack of jurisdiction, we need not consider Gilmore‘s evidentiary challenges in detail. However, “for the guidance of the trial court on remand,” United States v. Mayans, 17 F.3d 1174, 1184 (9th Cir. 1994), we note that Officer Jalani Hunter was permitted to offer testimony whose “probative value is substantially outweighed by [the] danger of ... unfair prejudice.”
CONCLUSION
We reverse the jury verdict, finding that the magistrate judge did not have jurisdiction over trial proceedings pursuant to
REVERSED AND REMANDED.