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DIXON v. LEONARDO

May 6, 1995

LAWRENCE DIXON, Plaintiff, against ARTHUR A. LEONARDO, Superintendent, Great Meadow Correctional Facility; D. CARPENTER, Deputy Superintendent of Programs, Great Meadow Correctional Facility; RONALD W. ATKIN, Chairman, Program Committee, Great Meadow Correctional Facility; and THOMAS A. COUGHLIN III, Commissioner, NYS Department of Correctional Services, Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 Plaintiff Lawrence Dixon brought suit against the above captioned defendants under 42 U.S.C. § 1983, alleging that he was unlawfully placed in a Special Housing Unit ("SHU") for an indefinite period of time without a hearing because he refused to accept a prison job assignment. Furthermore, plaintiff contends that the defendants conspired to deprive him of his rights and that they violated state law.

 This matter was referred to Magistrate Judge Daniel Scanlon, Jr. pursuant to a Standing Order dated November 12, 1986. Plaintiff subsequently filed separate motions to disqualify the magistrate judge, to compel discovery, and for partial summary judgment. Defendants filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Rule 56.

 After considering each of the respective motions, the magistrate issued a Report-Recommendation, dated July 6, 1993, in which he recommended (1) denying plaintiff's motion to disqualify; (2) denying plaintiff's motion for summary judgment; (3) denying plaintiff's motion to compel discovery; and (4) granting defendants' motion for summary judgment. Plaintiff requested an extension of time to provide his objections to the magistrate's Report-Recommendation, and was granted until August 16, 1993 in which to do so. Plaintiff subsequently filed his objections.

 I. Discussion

 A. Plaintiff did not have a statutory right to consent before the case was referred to a magistrate for preliminary findings of fact and a recommended disposition of the legal issues in the case.

 Section 636(c)(2), the provision upon which plaintiff erroneously relies, concerns the right of parties to an action to give their consent before a magistrate may exercise civil jurisdiction. After parties give their consent, the magistrate may conduct all of the proceedings in a jury or nonjury civil matter, including ordering the entry of judgment in the case. 28 U.S.C 636(c)(1)-(2). However, section 636(c) is not applicable in the instant case because the magistrate is not exercising full civil jurisdiction. Instead, the magistrate's involvement in the case is limited to submitting proposed findings of fact and making a recommendation for the disposition of the case, as expressly authorized by 28 U.S.C. 636(b)(1)(B), which does not require the consent of the parties. See Coleman v. Hutto, 500 F. Supp. 586 (E.D. Va, 1980) (authority of magistrate to conduct hearing and make recommendation in prisoner case is entirely independent of consent of parties).

 B. Motion to Disqualify the Magistrate.

 Plaintiff argues that the magistrate's review of plaintiff's motion to disqualify was limited as evidenced by the magistrate's alleged misstatement of the argument set forth in plaintiff's motion papers. *fn1" He further claims that the magistrate was biased, and he questions the truth of the magistrate's assertion in the Report-Recommendation that the court had not conducted any private conferences with any of the parties.

 28 U.S.C. 636(b) requires that this court make a de novo determination of those portions of the report to which objection is made. 28 U.S.C. 636(b). Accordingly, this court does so, mindful of plaintiff's objections.

 A review of plaintiff's Affidavit in Support of Motion for Disqualification or Recusal of the United States Magistrate Judge ("Affidavit in Support of Disqualification"), reveals the general accuracy of the magistrate's restatement of plaintiff's proffered factual basis for the disqualification. Specifically, plaintiff stated that he was

 
made aware by defendants' attorney that they had received a report-recommendation of the Honorable Daniel Scanlon, Jr., United States Magistrate, which recommends granting defendant's motion for summary judgment, and the report-recommendation having duly been considered by the undersigned . . . .
 
On the face of defendants' protective order . . . reference is given to a "report recommendation of Honorable Daniel Scanlon, Jr.," indicating [a] conference that excluded plaintiff. Said conference gives every indication of what can only be deed [sic] as knavery.

 Affidavit in Support of Disqualification at 2. Plaintiff then attached a copy of the protective order as evidence of the alleged secret conference. Id. As the magistrate noted, the protective order upon which plaintiff relies is an unsigned and undated proposed form of order submitted by the defendants with their motion papers as required by Local Rule 10(D).

 Plaintiff's allegations do not require the disqualification of the magistrate. A judge is required to recuse himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). "When construing whether recusal is appropriate under section 455(a), courts are to apply an objective test: 'The substantive standard for recusal is whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might be reasonably be questioned." United States v. IBM Corp., 857 F. Supp. 1089, 1091 ...


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