U.S. Magistrate Judge Sheri Pym Recuses Herself From Erin Baldwin’s Section 1983 Claim

December 1, 2011 § Leave a comment

On November 22, 2011, U.S. Magistrate Judge Sheri N. Pym, recused herself from Erin Baldwin’s Section 1983 Civil Rights action due, in part, to the fact that Ms. Baldwin named her as a defendant in the action.  See:  Magistrate Pym Recuses Herself

From the moment Ms. Baldwin filed her complaint she was labeled with the dreaded “194” classification which applies to pro se civil rights litigants, most notably prison inmates.  

The Central District Court of California despises these cases so much that they have built an intricate system by which they quickly and secretly dispose of these cases.  This intricate system intentionally violates the constitutional rights of the people that need the Court’s protection the most.    

All 194 cases are automatically referred to a U.S. Magistrate Judge that automatically refers it to her or his Pro Se Law Clerk. 

All 194 cases are denied the right to withhold consent to have their case heard by a U.S. Magistrate Judge.

All 194 cases are denied a jury trial, a discovery phase

Most 194 cases are forced into mandatory alternative dispute resolution at which time even more constitutional rights are stripped away.

 This vulnerable category of civil rights litigant (the poor and incarcerated) represent the reason why the U.S. Constitution was written – yet they are the ones that the Central District Court of California could care less about.  Instead of acknowleding the veracity and significance of these pleas for help, they are systematically disposed of as quickly as possible.

The following are portions of Ms. Baldwin’s Complaint that speak to this subject:

Plaintiff is Denied Right to Withhold Consent to Magistrate Judge

& Proceed Before Article III District Court Judge

            556.     There is significant Supreme Court precedent underscoring the constitutional requirement that Article III judges (Supreme Court Justices, Court of Appeal Justices, and U.S. District Court Judges) are the ultimate decision-makers on matters involving substantial constitutional questions, like the issues raised in Plaintiff’s Complaint.  Article III of the Constitution of the United States sets forth specific directives for Article III Judges, to wit:

Section 1The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Section 2The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; […] and between citizens of different states […]. ;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. 

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

            557.     In placing limits on the authority that can be delegated to magistrates, the courts have concluded that in dispositive judicial proceedings, Article III and the Fifth Amendment of the U.S. Constitution establishes rights for litigants to have their cases heard and decided by Article III, as opposed to Article I judges.  When important interests are at stake, and the nature of the judicial proceeding has a significant effect upon the rights and liberties of the accused, magistrates (or other non-Article III adjudicators) may preside in only two narrowly defined situations: (a) when specially appointed [to specific tasks] and subject to ongoing supervision by Article III judges; and (b) after obtaining the litigants’ consent. [1]          

            558.     In Gomez v. United States, 490 U.S. 858, 865 (1989), the U.S. Supreme Court held that a non-Article III official may preside when fulfilling a role “subject to the district judge’s ongoing supervision and final decision.”  In Gomez, a unanimous Supreme Court held that the task of conducting voir dire examination and presiding at jury selection in a felony trial requires an Article III presence. However, the district court judge in Gomez assigned a magistrate [for the specific task of] directing jury voir dire. The magistrate subsequently conducted the voir dire examination and presided at jury selection for petitioners’ trial on multiple felony counts.

            559.     Petitioners contested the magistrate’s appointment, but the district court judge overruled the objection.

            560.     Sensitive to potential challenges, however, the judge explicitly offered to review any of the magistrate’s rulings de novo. Despite this offer, the petitioners failed to challenge the selection of any specific juror.

            561.     The trial proceeded and the jury convicted the petitioners. It was not until well after conviction that petitioners challenged the authority of the magistrate to supervise jury selection.    Even then, however, petitioners made no specific claim of prejudice, nor did they allege that the magistrate failed properly to discharge his duties.

            562.     On appeal, the Second Circuit affirmed their convictions, observing that such a delegation did not violate Article III nor the Due Process Clause of the Fifth Amendment.     

            563.     The petitioners then sought writ of certiorari from the U.S. Supreme Court.  The Court granted the writ, and after reviewing petitioners’ claim, noted that “jury selection is the primary means by which a court may enforce a defendant’s right to be tried by a jury free from ethnic, racial, or political prejudice.”‘

            564.     Although the Court specifically avoided the constitutional implications of permitting a magistrate to preside over jury selection in a felony criminal trial, it concluded that “the right to have an Article III judge preside in such a consequential proceeding was so basic to fair trial rights that the harmless error doctrine could not apply.”

            565.     This lack of ongoing control is the linchpin of the Court’s decision in Gomez. Once counsel had completed the selection of the jury before the magistrate, the district court could exercise no further supervision.  After the jury was empaneled, it became difficult for the reviewing court to repair possible error committed by the presiding magistrate. Consequently, the magistrate became the final arbiter of the jury selection process. The Supreme Court found this situation intolerable and refused to interpret the Federal Magistrates Act to permit magistrates to preside at jury selection.

            566.     As the U.S. Supreme Court found:

“In matters of great constitutional significance, the trial should be tried before an Article III judge and will enjoy the protections conferred by the Constitution and Bill of Rights.  While trial before a magistrate may occur, the magistrate must be appointed by the district court, is subject to the consent of the litigants, and may face de novo review of the decision.”

            567.     As stated, supra, Plaintiff was denied the right to withhold consent to a magistrate judge hearing her case by District Judge Carter in his October 11, 2011 Order and by his clerk, Julie Barrera, in her email dated October 17, 2011.  Said Order of the Court violated Plaintiff’s federal rights and should be reversed.

            568.     The U.S. Supreme Court has also determined that magistrates may preside is in misdemeanor offenses and civil matters.  Under these circumstances, a magistrate may preside only upon the special designation of the district court and, correspondingly, with the express consent of the parties.[2]

            569.     Even if the parties consent to magistrate adjudication, however, the district court may, sua sponte, remove the proceeding from the magistrate and order trial to proceed in district court.  (See, 18 U.S.C. §3401)

            570.     Consent is the linchpin of magistrate adjudication. The Supreme Court, in preserving the magistrate’s role, declared that, absent consent, trial of a civil case before a magistrate would constitute a per se violation of Article III.” [3]

            571.     In Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 542,  469 U.S. 824 (1985), in a Ninth Circuit en banc opinion, Justice Kennedy observed that  “A mandatory provision for trial of an unrestricted class of civil cases by a magistrate and not by Article III judges would violate the constitutional rights of the litigants.”

            572.     Later, the Ninth Circuit sitting en banc withdrew this panel decision and reversed the holding. (Pacemaker, 725 F.2d at 547.) The new majority concluded that careful district court supervision of the magistrate trial and the requirement of litigant consent overcame constitutional objections. Id. at 544-46.

            573.     The Ninth Circuit’s en banc decision closely resembles those of the First, Second, and Third Circuits, all of which have upheld the constitutionality of magistrate civil trials on the grounds of close district court supervision, which preserves the interests of Article III, and litigant consent, which protects the due process rights of the parties.[4]

            574.     In Olympia Hotels Corp. v. Johnson Wax Development Corp. 908 F.2d 1363 (7th Cir. 1990) the Court of Appeal held:  “Parties cannot be forced to try a dispute subject to federal jurisdiction only by Article III, before a judge who is not authorized to exercise the power conferred by that article.” 

            575.     In Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the U.S. Supreme Court held that:  “Article III jurisdiction cannot be conferred on non-Article III courts (i.e., courts without the independence and protection given to Article III judges).”

            576.     In United States v. Lake, 910 F.2d 414, 417 (7th Cir. 1990), the Seventh Circuit held:  “Once again, consent is important. The parties may not be forced to use a magistrate against their wishes.”

            577.     Additionally, in Clark v. Poulton, 914 F.2d 1426, 1428 (10th Cir. 1990), the Tenth Circuit held:

“Magistrates lack jurisdiction to conduct an evidentiary hearing and make recommended findings (absent consent) in a suit under 28 U.S.C. §636 (1988). A magistrate may not proceed without the express consent of the parties-and even if consent is given, the magistrate’s decision is subject to de novo review by the district court. Consent is the principle implicated in each of these cases.[5]

            578.     Plaintiff did not discover the above facts until November 3, 2011.  Plaintiff is outraged and appalled at this tactic.[6]

            579.     Plaintiff asserts that Magistrate Judge Pym was assigned this case as the most junior Magistrate Judge.  This appears to be common practice amongst California government entities.  To safeguard against liability, they can argue “rookie mistake,” in connection with Federal Rules of Civil Procedure, Rule 61, also known as the “Harmless Error Doctrine.”   This rule is very broad and leaves ample room for arbitrary interpretations:

“Unless justice requires otherwise, no error in admitting or excluding evidence — or any other error by the court or a party — is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”

            580.     That is why Plaintiff has chosen to expose said fraud within her Second Amended Complaint prior to commencement of litigation.  Once the Complaint is filed, Plaintiff anticipates being flooded by Motions to Dismiss based on an argument akin to “harmless error,”  Federal Rules of Civil Procedure, Rule (12)(b)(6), “motion to dismiss for failure to state a claim upon which a remedy may be granted.”

            581.     Plaintiff asserts that the aforementioned issues are indeed reversible error and in direct violation of Plaintiff’s constitutional rights. 

Improper Adjudication of Judge Franz Miller’s Motion to Dismiss

            582.     Plaintiff wishes to point out that Magistrate Judge Pym has already violated United State Code §636(b)(1) (see, fn. 5, infra), namely, that she is prohibited from hearing or deciding a contested motion to dismiss in a civil action. 

            583.     On September 7, 2011, Magistrate Sheri Pym entered an Order of the Court pertaining to Defendant Judge Franz E. Miller’s Motion to Dismiss that stated: 

Defendant Judge Franz E. Miller’s motion to dismiss (docket no. 7) was filed on September 6, 2011, and noticed for hearing on October 11, 2011. 


1.         The noticed hearing date is ORDERED OFF CALENDAR.

2.         Plaintiff’s opposition, or notice of non-opposition, to the motion to dismiss must be served and filed on or before September 28, 2011. Any opposition should be limited to the issues raised in the motion to dismiss.

3.         Defendant’s reply, if any, shall be served and filed within 14 days of the filing of plaintiff’s opposition.

4.         Unless otherwise ordered, the motion will be taken under submission, without oral argument, when briefing is complete, and the parties will be notified by mail or email of all further proceedings.

Plaintiff is cautioned that failure to timely file an opposition to the motion to dismiss may be deemed consent to the granting of the motion. Local Rule 7-12.

            584.     Not only did Magistrate Judge Pym set for hearing a Motion to Dismiss when she is expressly not authorized to do so, she later vacated the hearing date, demanded an expedited briefing schedule, then took the matter under submission without allowing oral argument. 

Improper Ex Parte Extrajudicial Communications

            585.     In lieu of filing an opposition to Judge Miller’s Motion to Dismiss, Plaintiff filed a First Amended Complaint (“FAC”) named Judge Franz Miller in his individual capacity as an adjunct professor of law rather than a judicial officer.  Plaintiff also named Franz Miller’s attorney, Sarah Overton, and requested her removal due to improper ex parte extrajudicial communications with Magistrate Judge Pym on the day Plaintiff filed her FAC. 

            586.     When Plaintiff filed her FAC, the Clerk advised her that Ms. Overton would be served her copy of the FAC via the Court’s Electronic Filing program pursuant to U.S. District Court Central District Local Rule 5-3.3, “Service of Electronically Filed Documents” as soon as it was uploaded to PACER.  Plaintiff relied on this information and, in good faith, communicated same to Ms. Overton in an email that day, to wit:

“Thursday, September 28, 2011

3:30 P.M.

Dear Ms. Overton:

            This is to inform you that I have completed the filing of a First Amended Complaint in Erin K. Baldwin v. Bank of America et al. (previously Erin K. Baldwin v. State Bar et al.).  As such, the briefing schedule on the Motion to Dismiss is moot.  I’ll inform the department.  

            Your client has been sued as an adjunct professor of law at Whittier Law School and the First Amended Complaint is essentially a claim for relief to:  Collaterally attack and to vacate as void ab initio the default, default judgments, civil contempt citations, and permanent injunctions.  

            Your copy will be electronically transmitted once the Court uploads the document in the next couple of days via the ECF system.”

            587.     Magistrate Judge Pym had no way of knowing that Plaintiff sent the aforementioned email to Ms. Overton stating that her service copy would be electronically served, except by improper ex parte extrajudicial communication initiated by Ms. Overton.

            588.     Magistrate Judge Pym had no reason to believe that Plaintiff had not properly served the FAC in accordance with any authority deemed required, except by improper ex parte extrajudicial communication initiated by Ms. Overton. 

            589.     Nonetheless, Magistrate Judge Pym’s order of September 30, 2011 states, in relevant part: 

“Defendant Franz Miller is the only defendant who has appeared in this case, and is apparently the only defendant who was served with the original complaint.  

Plaintiff failed to file with the FAC a proof of service of the FAC on defendant Franz Miller. Because the FAC lacked this proof of service, it is subject to being stricken from the court’s docket. See August 23, 2011 Order, ¶ 7; Fed. R. Civ. P. 5(d); Local Rule 5-3.

Plaintiff is hereby ORDERED to serve the FAC on counsel for defendant Franz Miller, and to file proof of such service no later than October 7, 2011. If such proof of service is not filed by October 7, 2011, the FAC will be ordered stricken.”

            590.     Judge Magistrate Pym relied on Federal Rules of Civil Procedure, Rule 5(d),  Local Rule 5-3, and her August 23, 2011 “Initial Civil Rights Case Order and Regarding Time Limit for Serving Complaint” as the authority in her  September 30, 2011 Order.

            591.     Federal Rules of Civil Procedure, Rule 5(d) states, in relevant part: “Any paper after the complaint that is required to be served — together with a certificate of service — must be filed within a reasonable time after service.”

            592.     Local Rule 5-3 states, in relevant part:  “L.R. 5-3.2 Proof of Service – Attachment to Document Served.  If the proof or acknowledgment of service is attached to the original document, it shall be attached as the last page of the document.”

            593.     Magistrate Judge Pym’s August 23, 2011 Order states, in relevant part:

“Plaintiff is advised that, under Federal Rule of Civil Procedure 4(m), service of the summons and complaint must be accomplished on each named defendant within 120 days after the filing of the complaint. The 120-day period will expire on December 14, 2011. In addition, in accordance with Federal Rule of Civil Procedure 4(l) and this order, plaintiff must file with this court by not later than December 21, 2011 proof of service on each defendant.”

            594.     Plaintiff fails to find the authority upon which Magistrate Judge Pym relied to make her ruling on service to Ms. Overton.  None of the named authorities states that:

                        a.         Plaintiff must serve the document first, then attach a proof of service stating that service has been completed, and then file the document with the court; or that

                        b.         Plaintiff’s FAC is subject to being stricken if “a.,” supra, is not effectuated.

            595.     In any event, it would appear that striking a First Amended Complaint from the court record would fall under “dispositive matters,” not within the jurisdiction of Magistrate Judge Pym.

            596.     A magistrate judge may be removed “for incompetency, misconduct, neglect of duty, or physical or mental disability.” (28 U.S.C. §631(i)).

Plaintiff’s Case is Ordered to Mandatory Alternative Dispute Resolution

            597.     In addition to the above issues, on or about October 5, 2011, District Judge Carter assigned Plaintiff’s case to Mandatory Alternative Dispute Resolution.  Prior to this date, Plaintiff’s case docket only stated “194”; thereafter it stated “MANADR.”  Interestingly, a prisoner would never be assigned Mandatory ADR due to obvious logistical problems, so Plaintiff asserts that this is just another tactic to keep Plaintiff from bringing her case to a jury.

                        a.         Due to the fact that Plaintiff is not a party to a mandatory arbitration contract nor has she waived her right to a jury trial, she cannot be forced to submit to mandatory arbitration proceedings, nor would she under any circumstances.  Mandatory arbitration prevents a party from presenting its case before a jury, severely limits discovery, a single arbitrator’s findings are final and not appealable, and the findings are not made public.

                        b.         Mediation is the other form of alternative dispute resolution and is not binding on the parties.  Plaintiff was extraordinarily thorough in planning her §1983 action and even though she was not required by law to exhaust all administrative remedies prior to filing her §1983 Complaint in District Court, [7] she did so anyway, in good faith, hoping to avoid the filing of this action.  Nonetheless, both Defendants County of Orange and County of San Bernardino rejected Plaintiff’s Notice of Claim filings in whole.  As such, Plaintiff asserts that mediation would be pointless. 

[1] See, Federal Magistrates Act of 1968, Pub. L. No. 90-578, 82 Stat. 1107 (codified at 28 U.S.C.§§ 631-639 (1988)); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1044 (7th Cir. 1984); Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 546 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

[2] See, 28 U.S.C. § 636(c) (1988).  In a criminal matter, under 18 U.S.C. § 3401(b), (f) (1988), either the defendant or the prosecution may demand trial by an Article III judge.

[3] See, Gomez, 490 U.S. at 867-68, 870-72;  and Commonwealth Futures Trading Comm’n v. Schor, 478 U.S. 833, 848 (1986).

[4] See, Collins v. Foreman, 729 F.2d 108 (2d Cir.), cert. denied, 469 U.S. 870 (1984); Goldstein v. Kelleher,  728 F.2d 32 (1st Cir.), cert. denied, 469 U.S. 852 (1984); Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir. 1983).

[5] 28 U.S.C. §636(b)(1) (1988) provides that without consent, a magistrate may not: hear or decide a motion for an injunction; hear a motion for summary judgment; hear or decide a motion to dismiss an indictment; hear or decide a motion to suppress evidence in a criminal case; or hear or decide a contested motion to dismiss in a civil action. To the extent § 636 permits a magistrate to rule on pretrial matters or to conduct evidentiary hearings, § 636(b)(1) specifies that these actions are subject to de novo review by a district court.

[6] Was the Court given reason to believe that Plaintiff would be a prisoner in the near future meriting this case categorization? Plaintiff, a Riverside County resident, received a notice in the mail dated October 31, 2011, warning Plaintiff that she could be arrested and imprisoned at her home or work by the Orange County Sheriff’s Department for an outstanding $1,000 civil bench warrant released on August 18, 2011(over two months ago) by OC Superior Court Judge Franz E. Miller and only two days after  he was served as a defendant with the original Complaint on August 16, 2011.

[7] See, Felder v. Casey, 487 U. S. 131 (1988): “Notice of claim rules are neither universally familiar nor in any sense indispensable prerequisites to litigation, and there is thus no reason to suppose that Congress intended federal courts to apply such rules, which significantly inhibit the ability to bring federal actions.” […] “While prompt investigation of claims inures to the benefit of both claimants and local governments, notice statutes are enacted primarily for the benefit of governmental defendants, and are intended to afford such defendants an opportunity to prepare a stronger case. Sound notions of public administration may support the prompt notice requirement, but those policies necessarily clash with the remedial purposes of the federal civil rights laws.”

8.         On November 22, 2011, at or about 2:00 p.m., an “Order to Reassign Case Upon Recusal of Magistrate Judge Per General Order 05-07” dated November 21, 2011 was uploaded to PACER.[1]  United States Magistrate Judge Sheri N. Pym recused herself from Plaintiff’s case, to wit:

 “The undersigned Magistrate Judge to whom the above-entitled case was referred, being of the opinion that he/she should not hear said case by reason of Magistrate Judge Pym has been named as a defendant in Corrected Second Amended Complaint filed on November 14, 2011.  Hereby orders the case reassigned by the Clerk in accordance with Section 3.2 of General Order 08-05.” 

        What’s next … stay tuned….


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