Cartwright v. Doe

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Walter W. William Cartwright, III, 	)
)
Plaintiff, 	) 	ORDER DENYING MOTION FOR
) 	APPOINTMENT OF GUARDIAN AD
vs. 	) 	LITEM, DENYING MOTION FOR
) 	RECUSAL, AND GRANTING MOTION
Jane Doe, Medical NP, 	) 	TO WITHDRAW CONSENT
)
Defendant. 	) 	Case No. 1:23-cv-013
On February 28, 2023, Plaintiff filed a “Motion for Appointment of Counsel, Guardian Ad
Litem or Conservator Under Rule 17(c) and Motion to Stay Litigation.” (Doc. No. 15). On March
3, 2023, he filed a “Motion to Withdraw Consent to Have Case Handled by Magistrate Judge” and
“Motion for Recusal and Motion to Assign a Different Judge and Motion to Transfer Venue.” (Doc.
Nos. 17 and 18). For the reasons that follow, the “Motion for Appointment of Counsel, Guardian
Ad Litem or Conservator Under Rule 17(c) and Motion to Stay Litigation” and “Motion for Recusal
and Motion to Assign a Different Judge and Motion to Transfer Venue” are denied. The “Motion
to Withdraw Consent to Have Case Handled by Magistrate Judge” is granted.
I. 	BACKGROUND
Plaintiff is a pretrial detainee now in Marshals Service custody at the Ward County Detention
Center. He initiated the above-captioned action pro se and in forma pauperis on January 18, 2023,
against an unnamed defendant. (Doc. Nos. 1-3, and 7). On January 26, 2023, he filed notice of his
consent to the magistrate judge’s exercise of jurisdiction. (Doc. No. 9).
The undersigned screened Plaintiff’s complaint as required by 28 U.S.C. § 1915A.
Determining that Plaintiff had failed to assert cognizable constitutional or federal statutory claims
based upon the facts alleged in his complaint and that he could not proceed against an unnamed
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Defendant, the undersigned issued an order on February 13, 2023, giving him until March 20, 2023,
to either file an amended complaint or show cause why his original complaint should not be
dismissed for failure to state a claim for which relief can be granted. (Doc. No. 11).
On February 23, 2023, Plaintiff filed a “Motion for Appointed Counsel.” (Doc. No. 12). In
the caption of his motion he substituted Chantel Hillstead in place of Jane Doe as the named
defendant. In the body of his motion, he asserted that he requires the assistance of counsel due to
his diminished capacity. For support, he provided a letter from a doctor who had examined him in
2017. 	(Doc. No. 13). 	In this letter, the doctor expressed his opinion regarding Plaintiff’s
competency to stand trial in two criminal cases in the State of Missouri. (Id.).
On February 27, 2023, the undersigned issued an order denying Plaintiff’s motion without
prejudice with the following explanation:
Rule 17(c) of the Federal Rules of Civil Procedure provides in relevant part
that “[t]he court must appoint a guardian ad litem—or issue another appropriate
order—to protect a minor or incompetent person who is unrepresented in an action.”
Fed. R. Civ. P. 17(c)(2). “Although courts generally need not inquire sua sponte into
a pro se litigant's mental competence, a district court must consider invoking Rule
17(c) when it receives evidence from an appropriate court of record or a relevant
public agency indicating that the party had been adjudicated incompetent or
verifiable evidence from a mental health professional demonstrating that the party
is being or has been treated for mental illness of the type that would render him or
her legally incompetent.” Spartz v. Krehbiel, No. 19-CV-2163 (PJS/ECW), 2020 WL
1910557, at *2 (D. Minn. Apr. 20, 2020) (internal quotation marks omitted); see also
Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012) (district court abused its
discretion in failing to consider applying Rule 17(c) when record contained
“verifiable evidence” of incompetence).
Here, Plaintiff has not represented to this Court that he is “incompetent”
within the meaning of Rule 17(c). Nor has he requested the appointment of a
guardian ad litem. Rather, he has requested the appointment of counsel to assist him
in drafting an amended complaint.
Moreover, Plaintiff has not presented evidence to this court that he has been
adjudicated incompetent or that he is presently receiving treatment for any mental
illness or condition that would render him legally incompetent. 	What he has
provided the court is an opinion issued by a doctor in 2017 in the context of two
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pending criminal cases. At present it is unclear what, if any, weight this opinion was
given in these two cases.
Plaintiff’s filings to date suggest that he is capable of advocating on his own
behalf. The materials that Plaintiff has filed to supplement his complaint evince that
he was able to familiarize himself with the Ward County Detention Center’s
grievance process, used it, and, when dissatisfied with the response, initiate this
action and then file the instant motion. (Doc. Nos. 1 through 3, 7, 8, and 12). In the
instant motion he addressed one of the pleading deficiencies identified by the court
in its February 13, 2023, order–the defendant’s identity.
Accordingly, 	the 	Court 	finds 	nothing 	currently 	in 	the 	record 	that
demonstrates Plaintiff is legally incompetent for purposes of Rule 17(c) such that
appointment of a guardian ad litem is required. This does not end the court’s inquiry,
however.
While indigent civil litigants do not have a constitutional or statutory right
to appointed counsel, the court “may request an attorney to represent any person
unable to afford counsel” and has considerable discretion when deciding whether to
do so. Ward v. Smith, 721 F.3d 940, 942-943 (8th Cir. 2013) (quoting 28 U.S.C. §
1915(e)(1)). A number of factors are relevant when deciding whether to appoint
counsel, including “the factual complexity of the case, the ability of the indigent to
investigate the facts, the existence of conflicting testimony, the ability of the indigent
to present his claim and the complexity of the legal issues.” Abdullah v. Gunter, 949
F.2d 1032, 1035 (8th Cir. 1991). Appointment of counsel should be given serious
consideration if the plaintiff has not alleged a frivolous or malicious claim. Id.
Having considered these factors, the court is not presently inclined to appoint
counsel to represent Plaintiff. 	First, this case does not appear to be factually or
legally complex. Second, it appears that Plaintiff has the ability to investigate the
facts; it is apparent from the record that he has been able to communicate with staff
and otherwise articulate his concerns to staff and process their responses as
demonstrated by the copies of the various grievances and grievance appeals that he
submitted to staff and which he has attached to his original complaint as exhibits.
(Doc. Nos. 3 and 8). Third, Plaintiff’s citation to and reliance on case law and the
federal rules of civil procedure in the instant motion suggests that he has access to
legal resources and the ability to conduct legal research. 	Fourth, it appears that
Plaintiff comprehends what the court has asked of him and is capable of marshaling
a response as he has appeared to have ascertained the identity of Jane Doe and named
her in the caption of his instant motion.
(Doc. No. 14).
On February 28, 2023, Plaintiff filed a “Motion for Appointment of Counsel, Guardian Ad
Litem or Conservator Under Rule 17(c) and Motion to Stay Litigation.” (Doc. No. 15). On March
3, 2023, he filed a “Motion to Withdraw Consent to Have Case Handled by Magistrate Judge” and
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“Motion for Recusal and Motion to Assign a Different Judge and Motion to Transfer Venue.” (Doc.
Nos. 17 and 18).
II. 	DISCUSSION
A. 	Substitution of Named Defendant
As noted above, Plaintiff identified Defendant Jane Doe as Chantel Hillstead (“Hillstead”)
in the caption of his most recent motions. Accordingly, Hillstead shall be substituted in place of
Jane Doe as the named defendant and the case caption shall be amended accordingly. 	The
undersigned shall now turn to Plaintiff’s pending motions.
B. 	“Motion for Recusal and Motion to Assign a Different Judge and Motion to
Transfer Venue”
The undersigned previously issued a report recommending the dismissal of a different civil
action filed by Plaintiff. 	See Cartwright v. Krabbenhoft, et al., Case No. 1:22-cv-025 (D.N.D.)
(hereafter referred to as “Cartwright I”). The undersigned also recently ordered Defendant detained
pending trial in his federal criminal case. See United States v. Cartwright, Case No. 1:22-cr-081
(D.N.D). As noted above, the undersigned recently issued an order to show cause and an order
denying Plaintiff’s request for court-appointed counsel without prejudice in this case. 	(Doc. Nos.
11, 15).
In his motion for recusal, Plaintiff asserts that the undersigned various rulings and/or
recommendations evince the undersigned’s bias against him, which requires both the undersigned’s
recusal and a change of venue to a different division.
1.)The Honorable Judge Clare R. Hochhalter was assigned to both civil actions that
Mr. Cartwright had initiated in the Federal Court and has been handling matters in
Mr. Cartwright’s Federal criminal case. He held Mr. Cartwright’s detention hearing
on February 23, 2023 and had recently recommended the dismissal of his 1983
claim, case no. 1:22-cv-025. HE’s also taking action in Mr. Cartwright’s other 1983
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claim, case no. 1:23-cv-013.
2.) The Honorable Judge Clare R. Hochhalter mentioned Mr. Cartwright’s Federal
Criminal case in his report and recommendation pertaining to civil case No. 1:22-cv-
025. His direct participation in both Mr. Cartwright’s criminal and civil cases, along
with comments create the idea of a bias opinion of Mr. Cartwright and he should
recuse himself from all actions either brought by Mr. Cartwright or brought by the
Government.
3.) 	The Honorable Judge Clare R. Hochhalter controlled whether or not Mr.
Cartwright was released on pretrial release in criminal case no. 1:22-cr-081. Mr.
Cartwright’s inmate status means restrictions are placed on him during the litigation
in both of his 1983 claims. 	If the Honorable Judge Clare R. Hochhalter were to
release Mr. Cartwright, he would also be lifting the restrictions placed on Mr.
Cartwright by the P.L.R.A.
4.) The Honorable Judge Clare R. Hochhalter cannot say his decision not to release
Mr. Cartwright from Federal custody was not effected by his direct knowledge of
Mr. Cartwright’s inmate status and what it would mean in regards to how the courts
would have to handle his civil actions if release and no longer under the P.L.R.A.
5.) 	In civil action 1:23-cv-013 the defendant has not been served a summons to
appear in court and has not gave consent for the Magistrate to handle that matter.
Mr. Cartwright had previously gave consent for this matter to be handled by the
Magistrate but demands that his consent be withdrawn.
6.) The relevant statute and rule stress that consent to having a case handled by a
magistrate judge must be voluntary. 28 U.S.C. § 636(c)(2); accord Rule 73(B).
7.) 	The Honorable Judge Clare R. Hochhalter’s conduct displays a deep seated
favoritism to all the defendants in Mr. Cartwright’s civil actions. He has voided
following relevant law under Rule 17(c)(2) that pertains to appointing counsel,
guardian ad litem or a conservator to protect the rights of Mr. Cartwright who has
been found incompetent. He’s aware of this rule and has proceeded to handle Mr.
Cartwright’s case without giving Mr. Cartwright the benefit of the doubt and should
of recused himself whenever he received information from extra judicial sources.
During Mr. Cartwight’s detention hearing for his Federal case Jeremy Ensrud the
Federal attorney for the government informed the Honorable Judge Clare R.
Hochhalter that Mr. Cartwright has 20 years of criminal history, a crime of violence,
substance abuse problems that have not been addressed, and that went on and on.
8.) This would lead a reasonable person to question the Honorable Judge Clare R.
Hochhalter’s impartiality. He’s developed a bias from extra judicial sources and
continues to display an antagonism opinion toward Mr. Cartwright by denying him
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relief in his civil rights and denying him pretrial release in his Federal case based on
information from other sources and not relevant [illegible].
9.) The Honorable Judge Clare R. Hochhlater voided his legal duty to protect Mr.
Cartwright’s rights.
10.) Recusal is required if the judge bears a bias or prejudice that might call into
question his or her impartiality. United States v. Gamboa, 439 F.3d 796, 817 (8th
Cir. 2006).
11.) 	Under the Due Process Clause there is an impermissible risk of actual bias
when a judge earlier had involment [sic] in a critical decision regarding the
defendant’s case.
12.) 	The alleged bias and prejudice to be disqualifying, must stem from an
extrajudicial source and result in an opinion on the merits on some basis other than
what the Judge learned from his participation in the case. Berger v. United States,
255 U.S. 22, 31.
13.) Under 28 U.S.C. § 1404(B) a civil action may be transferred from the division
in which it is pending to any other division in the same district upon motion,
stipulation, or consent of the parties.
14.) 	Pursuant to 28 U.S.C. § 636(b)(1)(A) a Judge may reconsider any pretrial
matter designated to a magistrate judge to hear and determine where it was shown
that the magistrate judge’s order is clearly erroneous or contrary to law. See also
Fed. R. Civ. P. 72(a).
(Doc. No. 18).
“Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice
either against him or in favor of any adverse party, such judge shall proceed no further therein.” 28
U.S.C. § 144. “Any justice, judge, or magistrate judge of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).
Under both recusal statutes, the substantive standard is “whether a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might reasonably be
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questioned.” 	United States 	v. Studley, 783 F.2d 934, 940 (9th Cir.1986) (quoting Mayes v.
Leipziger, 729 F.2d 605, 607 (9th Cir.1984) (citations omitted)).
When armed with all of the facts, no reasonable person would conclude that the undersigned
harbors any bias against Plaintiff. Consequently, the undersigned’s recusal is neither necessary nor
warranted.
Plaintiff was in custody when he initiated both Cartwright I and the instant action.
Consequently, he remains subject to the requirements of the Prison Litigation Reform Act regardless
of his custodial status in his pending criminal case. 	See Jackson v. Ward Cnty. Offs., No.
1:12-CV-017, 2012 WL 3135376, at *2 (D.N.D. Mar. 27, 2012), report and recommendation
adopted sub nom. Jackson v. Thompson, No. 4:12-CV-017, 2012 WL 3135409 (D.N.D. Aug. 1,
2012); see also Johnson v. Hill, 965 F.Supp. 1487, 1488 n. 2 (E.D. Va.1997) (“[T]he court finds that
it must still conduct a section 1915A screening, for two reasons. First, plaintiff was a prisoner at the
time he filed this action. Second, the suit was brought by plaintiff in his capacity as a prisoner; that
is, it advances his concerns about alleged misconduct by prison officials and injuries received at the
hands of another inmate.”); Michalski v. Krebs, No. 09–492, 2010 WL 1032647 at *1 (S.D. Ill.
March 17, 2010) (“At the time Plaintiff submitted this complaint, he was still confined at the
Centralia Correctional Center and, therefore, the provisions of 28 U.S.C. § 1915A apply to his
complaint.”). 	Plaintiff’s assertions that the undersigned’s detention order in his criminal case
informed the recommendations/rulings in his civil cases or vice versa and that he would have been
freed of the PLRA’s requirements if he had been released pending trial in his criminal case are
therefore specious.
Plaintiff is correct that the undersigned did mention his criminal case in a report and
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recommendation issued in Cartwright I. However, in so doing, he conveniently neglects to mention
the context in which his criminal case was mentioned. 	In Cartwright I, Plaintiff had requested
preliminary and permanent injunctive relief from staff at North Dakota State Penitentiary (“NDSP”)
and the North Dakota Department of Corrections and Rehabilitation (“NDDOCR”). Specifically,
he sought a Court order directing NDSP and NDDOCR staff to immediately provide him with
medical treatment he had previously requested but had allegedly been denied. The undersigned
recommended that the Court deem his request for preliminary injunctive relief moot as it could take
judicial notice of Plaintiff’s pending federal criminal case and the fact that he was no longer
incarcerated at the NDSP or in the custody of NDDOCR. Cartwright I at Doc. No. 47, pp. 6-7
(“Plaintiff was in NDDOCR custody at the NDSP when he initiated this action. The record reflects
that he has since been released from NDDOCR custody and is currently incarcerated at the Ward
County Detention Center in Minot, North Dakota, awaiting trial on state charges. As he is no longer
incarcerated at the NDSP, Defendants are no longer providing for his medical care. There appears
to be little prospect that he will be returning to the NDSP in the near future. 	His requests for
preliminary and permanent injunctive relief against Defendants may be therefore be dismissed by
the Court as moot.”). It is well-settled that a Court “can sua sponte take judicial notice of its own
records and files, and facts which are part of its public records" and that "[j]udicial notice is
particularly applicable to the court's own records of prior litigation closely related to the case before
it.” Jacob v. Cotton, No. 4:20CV3107, 2021 WL 130953, at *1 n.1 (D. Neb. Jan. 14, 2021) (citing
United States v. Jackson, 640 F.2d 614, 617 (8th Cir. 1981)).
Plaintiff also conveniently neglects to mention that he was afforded an opportunity to file
an objection to the undersigned’s report and recommendation in Cartwright I, that he did in fact file
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an objection, and that the Court did not find his objection to be particularly persuasive as it adopted
the undersigned’s recommendation. See Cartwright I at Doc. Nos. 48 and 50.
Plaintiff’s assertion that he has been found incompetent is unsupported by the record. At
present all that Plaintiff has submitted is an opinion letter issued by a physician in 2017 about his
competency to stand trial in two separate Missouri cases. As the undersigned noted in the order
denying his previous request for counsel, it is unclear what if any weight this opinion was given as
Plaintiff has provided no information regarding the disposition of his two Missouri cases. There is
also a dearth of evidence to indicate that Plaintiff was found incompetent by any court or is currently
receiving treatment for any medical illness or condition that could bear upon his ability to
understand and actively participate in the current proceedings. Again, the opinion letter submitted
by Plaintiff is dated 2017 and therefore sheds no light on his current condition.
Plaintiff’s request for the undersigned’s recusal appears to boil down to his disagreement
with the undersigned’s rulings. Such dissatisfaction is not a valid basis for recusal, however. See
e.g., Leonard v. Monroe Cnty. Fla., 789 F. App'x 848, 851 (11th Cir. 2019) ( “[A] judge's adverse
ruling – without more – is insufficient to demonstrate the requisite pervasive bias and prejudice
against a party that would mandate recusal.”). The United States Supreme Court has noted that
“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky
v. United States, 510 U.S. 540, 555 (1994); see also Moran v. Clarke, 296 F.3d 638, 649 (8th Cir.
2002) (“[a]n unfavorable judicial ruling... does not raise an inference of bias or require the trial
judge's recusal”).
In sum, the report and recommendation and/or orders issued by the undersigned in Plaintiff’s
previous cases in no way demonstrate bias or partiality in the instant case. Plaintiffs’ motion for
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recusal, reassignment, and change of venue is therefore denied. The undersigned shall now turn to
Plaintiff’s request for court-appointed counsel.
C. 	"Motion for Appointment of Counsel, Guardian Ad Litem or Conservator
Under Rule 17(c) and Motion to Stay Litigation"
Plaintiff’s instant motion for the appointment of counsel, guardian ad litem , or conservator
mirrors the motion that he had filed on February 23, 2023, requesting court-appointed counsel. For
the reasons set forth in undersigned’s February 27, 2023, order, the undersigned concludes that the
circumstances do not presently warrant the appointment of counsel, guardian ad litem, or
conservator for Plaintiff. 	The undesigned further concludes there is no basis for staying this
litigation.1 Consequently, the undersigned denies Plaintiff’s motion without prejudice. However,
the undersigned shall extend Plaintiff’s deadline to show cause or file an amended complaint until
April 10, 2023. The undersigned shall now turn to the issue of Plaintiff’s consent to the magistrate
judge’s exercise of jurisdiction.
D. 	"Motion to Withdraw Consent to Have Case Handled by Magistrate Judge"
A magistrate judge may conduct all proceedings in a civil matter “upon consent of the
parties.” 28 U.S.C. § 636(c)(1). “Such consent must be obtained from all parties to the litigation and
a failure to obtain consent from all parties deprives a magistrate judge of jurisdiction.” Barnett v.
Hill, No. 1:19-CV-00008 JAR, 2019 WL 3343254, at *1 (E.D. Mo. July 25, 2019); see also Reid
v. Missouri Dep't of Corr., No. 06-03104-CV-S-JTM, 2007 WL 9718094, at *1 (W.D. Mo. Jan. 31,
2007).
Federal Rule of Civil Procedure 73(b) provides that “[w]hen a magistrate judge has been
1 Plaintiff’s request to stay the litigation indefinitely is puzzling given the concerns he expressed in his
complaint about alleged delays in obtaining medical care.
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designated to conduct civil actions or proceedings, the clerk must give the parties written notice of
their opportunity to consent under 28 U.S.C. § 636(c).” Fed. R. Civ. P. 73(b)(1). “To signify their
consent, the parties must jointly or separately file a statement consenting to the referral.” Id.
This case was directly assigned to the undersigned pursuant to this district’s “Plan for Direct
Assignment of Civil Cases to a Magistrate Judge.”2 The Clerk’ Office sent notice of direct
assignment to Plaintiff on January 18, 2023. (Doc. No. 4).
Using the form provided to him by the Clerk's office, Plaintiff filed notice on January 26,
2023, of his express waiver of his right to proceed before a district judge and his voluntary consent
to the magistrate judge’s exercise of jurisdiction. 	Plaintiff now requests leave to withdraw his
consent. Although he does not articulate any particular reason why, he is obviously motivated by
his dissatisfaction with the undersigned’s rulings. In making his request, he correctly points out that
Defendant has yet to consent to undersigned's exercise of jurisdiction. As this matter is still at the
screening stage, Defendant has yet to be served and therefore has yet to receive written notice of her
opportunity to consent under 28 U.S.C. § 636(c).
After consent is given, “[t]here is no absolute right, in a civil case, to withdraw consent to
trial and other proceedings before a magistrate judge.” Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.
1993); see also Carter v. Sea Land Servs., Inc., 816 F.2d 1018, 1020 (5th Cir. 1987); Rivera v.
Rivera, 216 F.R.D. 655, 659 (D. Kan. 2003). However, both § 636(c)(6) and Rule 73(b) provide that
the Court may, on its own for good cause or when a party shows extraordinary circumstances, vacate
a referral to a magistrate judge. 28 U.S.C. § 636(c)(4); Fed. R. Civ. P. 73(b)(3). “‘Good cause’ and
‘extraordinary circumstances’ are high bars that are difficult to satisfy.” E.D. v. Cnty. of Contra
2 https://www.ndd.uscourts.gov/lci/Direct_Assignment_Plan.pdf
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Costa, No. 20-CV-03014-SK (JSW), 2022 WL 1015992, at *2 (N.D. Cal. Apr. 5, 2022) (citing
Branch v. Umphenour, 936 F.3d 994, 1000 (9th Cir. 2019)).
Courts have held that “extraordinary circumstances” are not shown where a motion to
withdraw consent was motivated by a litigant's dissatisfaction with a magistrate judge's rulings. See
Barbero v. TLC Prop. Mgmt., LLC, No. 19-03171-CV-S-DPR, 2019 WL 13203972, at *1 (W.D.
Mo. July 2, 2019) (no extraordinary circumstances where plaintiff was unhappy about a court’s
order to amend her complaint to adequately state a claim upon which relief may be granted); Mello
v. Unum Corp., No. 4:13CV2543 NCC, 2014 WL 360610, at *1 (E.D. Mo. Feb. 3, 2014) (denying
a plaintiff’s motion to revoke her consent despite the of the fact that service had yet to be effectuated
and full consent attained); see also Milhous v. Metro. Gov't of Nashville & Davidson Cnty., 221
F.3d 1335 (6th Cir. 2000) (no extraordinary circumstances where plaintiff simply was displeased
with magistrate judge's rulings on motions to dismiss); Rivera v. Rivera, 216 F.R.D. 655, 661 (D.
Kan. 2003) (no extraordinary circumstances where obvious that motion was motivated by
defendant's dissatisfaction with court's recent order granting plaintiff new trial); Moses v. Sterling
Com., No. 2:99-CV-1357, 2003 WL 1869158, at *1 (S.D. Ohio Apr. 4, 2003) (no extraordinary
circumstances where plaintiff's motion is motivated by dissatisfaction with certain rulings); O'Neal
Bros. Constr. Co. v. Circle, Inc., 1994 WL 658468, *2 (E.D. La. Nov. 21, 1994) (no extraordinary
circumstances where party is unhappy with decisions of magistrate judge and determines, in
hindsight, that perhaps consent should not have been given and that district judge might have ruled
more favorably). In Carter v. Sea Land Services, Inc., 816 F.2d 1018 (5th Cir. 1987), the court
summed up its reasons for not allowing a plaintiff to withdraw her consent as follows:
We are not persuaded that a litigant has ... a right [to withdraw consent]. We find
nothing in the statute or the legislative history that requires continuing expressions
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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. We will not countenance such fast and loose
toying with the judicial system.
Id. at 1020–21.
It should be noted however, that, in the cases cited above, one party was seeking to withdraw
consent after both parties had consented to magistrate judge jurisdiction. When confronted with a
scenario where a plaintiff moved to withdraw consent before the other party had consented, the
Ninth Circuit, in Gilmore v. Lockard, took a different tack than the Fifth Circuit in Carter and
concluded that the plaintiff did not have to satisfy the extraordinary circumstances standard and that
his motion should have been granted. 	Gilmore v. Lockard, 936 F.3d 857, 862 (9th Cir. 2019)
(confronting a scenario where the plaintiff had filed his motion to withdraw consent after the
defendants had denied consent, after the case was assigned to a district judge, and before defendants
later consented to the magistrate judge’s jurisdiction), It, reasoned:
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, both parties had
consented to magistrate judge jurisdiction. [Carter, 936 F.3d at 1020]. The Carter
court worried about a litigant seeking to withdraw consent after both parties had
consented and the magistrate judge had made determinative rulings pursuant to §
636(c). Here, by contrast, Defendants had not yet consented, and the magistrate
judge had not made rulings 	outside of limited pretrial motions as provided in §
636(b). The concern over forum shopping between a magistrate judge and an Article
III judge is lessened if the magistrate judge can make only nondispositive pretrial
rulings.
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Id.,
The Fourth Circuit has similarly concluded that a plaintiff need not demonstrate
extraordinary circumstances in order to withdraw his consent to magistrate judge jurisdiction if the
opposing parties have yet to consent, reasoning:
[Section 636] does not address a party's withdrawal of consent before a transfer.
Thus, it certainly does not impose a good cause standard for withdrawing consent.
The only mention of good cause in § 636 comes in subsection (c)(4). That subsection
provides that a district court may vacate the transfer “for good cause shown on its
own motion, or under extraordinary circumstances shown by any party.” 28 U.S.C.
§ 636(c)(4); see also Fed. R. Civ. P. 73(b)(3). But § 636(c)(4) only applies once a
case has been transferred to the magistrate judge. It does not apply to one party's
consent to referral when the other parties have not also consented. That there is a
good cause requirement to vacate a referral once the case has been transferred and
not before is significant. Congress knew how to impose a good cause requirement
in connection with its control over magistrate judge jurisdiction. Yet it did not
impose that requirement for a party's withdrawal of his or her consent before the
other parties consented to magistrate judge jurisdiction. We decline to judicially
create a requirement Congress did not impose.
See Muhammad v. Fleming, 29 F.4th 161, 166 (4th Cir. 2022)..
The holdings in Gilmore and Muhammad are not binding on this Court. 	They are
nevertheless persuasive. Section 636(c) imposes no limitations on withdrawal before all parties have
consented. Consequently, a showing of good cause or extraordinary circumstances is not required
by Plaintiff in this instance and the decision to regarding his withdraw is left to the Court’s
discretion.
In the exercise of this discretion, the undersigned is inclined to permit Plaintiff to withdraw
his consent.3 At first blush, Plaintiff’s motion appears to be a thinly veiled attack on the
3 “Jurisdictions disagree about whether a motion to withdraw consent to magistrate judge jurisdiction should
be resolved by the assigned magistrate judge or by a district judge.” Pederson v. John Deere Electronic Solutions, Case
No. 3:20-cv-051, 2021 WL 68057 01, at *1 (D.N.D. Feb. 23, 2021) (collecting cases). The Eighth Circuit has not ruled
on this issue. See id. (magistrate judge denying a parties’ motion to withdraw consent and recommending that the chief
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undersigned’s impartiality, an issue addressed above in the context of Plaintiff’s motion for recusal.
Nevertheless, Plaintiff’s case has yet to move beyond initial screening and no dispositive orders
have been issued in it by the undersigned. 	Moreover, Defendant has yet to give her consent to
magistrate judge jurisdiction. Consequently, she is not prejudiced by Plaintiff’s withdrawal of his
consent. 	Finally, Plaintiff’s withdrawal of his consent does not foreclose undersigned from
addressing nondispostive pretrial matters or from submitting recommendations for the disposition
of dispositive matters. See 28 U.S.C. § 636(b)(1)(A)-(C). In other words, Plaintiff’s withdrawal of
his consent will not operate as a back-door method of obtaining the undersigned’s recusal.
III. 	CONCLUSION
Chantel Hillstead shall be substituted in place of Defendant Jane Doe. The case caption shall
be amended accordingly. Plaintiff’s “Motion for Appointment of Counsel, Guardian Ad Litem or
Conservator Under Rule 17(c) and Motion to Stay Litigation” (Doc. No. 15) and “Motion for
Recusal and Motion to Assign a Different Judge and Motion to Transfer Venue” (Doc. No. 18) are
DENIED. Plaintiff’s “Motion to Withdraw Consent to Have Case Handled by Magistrate Judge”
(Doc. No. 17) is GRANTED.
Dated this 10th day of March, 2023.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
district judge conduct a de novo review).
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