United States v. 2020-03-12 | 18-56399 | KENNARD DAVIS V. MATTHEW ATCHLEY | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNARD LEE DAVIS,

Petitioner-Appellant,

v.

MATTHEW ATCHLEY, Acting Warden,

Respondent-Appellee.

No. 18-56399

D.C. No. 2:06-cv-04744-JVS-JEM

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
John E. McDermott, Magistrate Judge, Presiding

Submitted March 3, 2020
**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Kennard Lee Davis appeals from the magistrate judge’s order denying the
motion to withdraw filed by Davis’s counsel. We conclude that we lack
jurisdiction over this appeal and remand to the district court.
As an initial matter, we agree with the parties that the magistrate judge had

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

MAR 12 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-56399
authority under 28 U.S.C. § 636(b)(1)(A) to hear and determine counsel’s motion
to withdraw. See Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015)
(magistrate judge has authority to determine nondispositive matters). The record
shows, however, that the parties did not consent to the magistrate judge’s
jurisdiction under 28 U.S.C. § 636(c)(1). Absent this consent, Davis first had to
seek review by the district judge for clear or legal error before appealing the order
to this court. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Simpson v. Lear
Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996) (Rule 72(a) requires a
magistrate judge’s nondispositive order to be reviewed by the district judge to be
appealable); In re San Vicente Med. Partners Ltd., 865 F.2d 1128, 1131 (9th Cir.
1989) (order) (absent consent, magistrate judge order not final or appealable to the
circuit court).
We lack jurisdiction over this appeal and therefore, we remand this matter to
the district court for further action.
REMANDED.