Kennard Davis v. Matthew Atchley

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2020
• Docket: 18-56399
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENNARD LEE DAVIS, No. 18-56399

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

v. MEMORANDUM* MATTHEW ATCHLEY, Acting Warden,

Respondent-Appellee.

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). 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.

2 18-56399