IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

OBJECTIONS TO MAGISTRATE ORDERS and
MOTION FOR INJUNCTION AGAINST MAGISTRATE JUDGE or
PETITION FOR MANDAMUS

Comes now Plaintiffs Blackston an Barber and objects to the Magistrate Judge issuing dispositive Orders, acting outside the scope of her jurisdiction and request injunctive relief or extraordinary relief as follows:

FACTUAL BACKGROUND

1. The plaintiffs filed their Amendment #2 to Verified Complaint (RICO), on 28 February 2000, (Doc. # 37)

2. The plaintiffs filed a Motion to Add Defendant, (Peggy Walker,) on 03 March 2000. (Doc. # 39)

3. A Scheduling Conference was held on 3 March 2000.

4. The Magistrate Judge entered a Scheduling Order, in the above case, on 6 March 2000. (Order, Doc. # 40)

5. The defendants filed a Motion to Dismiss, Amendment #2 on 14 March 2000. (Doc. #43)

6. The Magistrate Judge granted the Motion to Add Defendant, (Peggy Walker) on 16 March 2000. (Doc. # 39) and Ordered that on or before 18 April 2000, the plaintiffs shall respond to the defendants' motion to dismiss. (Order, Doc. # 45).

7. The defendants filed a Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity on 20 March 2000 (Doc. #46).

8. The defendants filed a Motion for Reconsideration (adding Peggy Walker as a defendant), on 21 March 2000. (Doc #47)

9. The Magistrate Judge granted the defendants' Motion for Reconsideration on 28 March 2000. (Order, Doc #50)

10. The plaintiffs filed Objections to Defendants' Motion to Reconsider on 29 March 2000. (Doc. # 54).

11. The plaintiffs mailed their Response to Defendants' Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity on 29 March 2000. (Doc. # 52)

12. The Magistrate Judge granted the defendants' Motion to Stay Discovery on 31 March 2000. (Order, Doc #53), before the plaintiffs' Response arrived at the Clerk's Office and thus before the plaintiffs had an opportunity to respond.⁽¹⁾

13. The Scheduling Order's time for filing Motions to Amend and Motion to Add Defendants ended on 4 April 2000. (Scheduling Order, Doc. # 40, ¶1, p1)

14. The plaintiffs mailed their Motion for Leave to Amend and Motion to Add Peggy Walker as necessary Party and Objections to Court's Order Dismissing Peggy Walker on 3 April 2000. (Doc # 54) and the Court Clerk entered the Motions into the Docket Sheet, on 4 April 2000.

15. The Magistrate Judge DENIED the plaintiffs' Motion to Add Peggy Walker as Necessary Party on 6 April 2000. (Doc. # 55)

16. The Magistrate Judge DENIED the plaintiffs' Motion for Leave to Amend on 6 April 2000. (Doc. # 56)

ISSUES and QUESTIONS for CONSIDERATION

I. Is the Magistrate Judge operating outside her jurisdiction in issuing Dispositive Orders? (Order, Doc #50). A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A).

This Court concluded in Kendall v. Davis, 569 F.2d 1330 (5th Cir. 1978), that 28 U.S.C.A. § 636(b)(2) does not authorize entry of a final judgment by a magistrate. See also Cason v. Owen, 578 F.2d 572, 573 (5th Cir. 1978). Rather, the Court observed, § 636(b)(1) provides for close supervision of the magistrate and for district court review of findings and recommendations.

The magistrate's action in LP&L suit was purportedly taken pursuant to two of the Rules Governing Jurisdiction and Authority of United States Magistrates for the Northern District of Alabama promulgated in accordance with 28 U.S.C.A. § 636(b)(4). Rule 2 which, with reference to 28 U.S.C.A. § 636(b)(1)(B), recites the magistrate's powers with regard to dispositive matters, authorizes the magistrate, at the judge's discretion, to hear motions for injunctive relief and to submit proposed findings of fact and recommendations to the judge. Rule 3, which refers to the consent provision of 28 U.S.C.A. § 636(b)(2), permits designation of a magistrate to preside over civil trials by consent of the parties.

It is obvious that the district court cannot by rule confer on a magistrate jurisdiction not permitted by statute. Neither can consent of the parties authorize a magistrate to enter final judgments where power to act in such area is restricted by statute. See Taylor v. Oxford, 575 F.2d 152, 154 (7th Cir. 1978).

Magistrate Taylor did not have the power under 28 U.S.C.A. § 636 to enter the injunction in the contract case even if the district court could have entered it. USW v. Bishop, 598 F.2d 408 (5th Cir. 1979).

The Magistrate Judge's action of dismissing Peggy Walker as a necessary defendant is a dispositive matter, as to Peggy Walker, therefore the Magistrate Judge acted outside her jurisdiction.

II. Is the Magistrate Judge showing favoritism towards the defendants by granting each and every request made by the defendants, regardless of the dispositive nature of the request or how it impacts the plaintiffs' rights under the Scheduling Order?

Judge McPherson allowed eighty-seven (87) days for the defendants to respond to the Complaint and Motion for Injunctive Relief. (Plaintiffs' Motion to Reconsider, Doc. # 15, ¶2, p1) Now Judge McPherson seeks to jam time restrictions against the plaintiffs, denying every Motion filed by the plaintiffs.

III. Is the Magistrate Judge operating outside her jurisdiction by ruling upon the plaintiffs' objections to her Orders? (Doc. #54, #55 and #56)

The Magistrate Judge, conterminously ruling upon objections to her decisions, is analogous to a judge when "asked to recuse himself has no other or further duty to perform than that prescribed in 28 U.S.C. § 144 of the Judicial Code. He is relieved from the delicate and trying duty of deciding upon the question of his own disqualification." Berger v. United States, 255 U.S. 481, 485; 28 U.S.C. § 636.

IV. Is the Magistrate Judge violating the plaintiffs' due process and equal protection rights under the Scheduling Order? (Doc. # 40)

Rule 16 takes precedence, when considering Motions to Amend. If we considered only Rule 15(a) without regard to Rule 16(b), we would render scheduling orders meaningless and effectively would read Rule 16(b) and its good cause requirement out of the Federal Rules of Civil Procedure. Sosa v. Airprint Sys, 133 F.3d 1417, (11th Cir. 1998) The plaintiffs filed their Motion to Amend and Add Defendant, well within the Scheduling Order's time limits for Motions to Amend and Motion to Add Defendants. (Scheduling Order, Doc #40, ¶1, p1)

The Magistrate Judge rendered her scheduling order meaningless by denying the plaintiffs' Motion to Amend and Motion to Add Defendant.

V. Does the Magistrate Judge have an illegal association with one of the defendants or their lawyer, outside the Court, that prohibits the judge from acting without prejudice or bias?

For the second time, the plaintiffs raise the question of improprieties by the Magistrate Judge. Any reasonable person would conclude from Judge McPherson's actions, in collusion with the defendant's attorney, both inside and outside the Court process, that she is prejudice against the plaintiffs. 28 U.S.C. § 144, 28 U.S.C. § 455.

VI. Is the Magistrate Judge unfairly prejudicing the plaintiffs' case by delaying discovery when the Court's Order explicitly ruled that the plaintiffs' first amendment and contract claims will proceed to trial?

The Magistrate Judge overruled the Presiding Judge's Memorandum Opinion and Order, by granting defendants' Motion to Stay Discovery Pending Ruling on Absolute and Qualified Immunity, irrespective of the Court's Order stating that the plaintiffs' first amendment and contract claims will proceed to trial. (Memorandum Opinion and Order, p2, n1)

The plaintiffs have not given their consent for the Magistrate Judge to rule on dispositive matters. The Magistrate Judge's actions goes beyond an abused of discretion - she operates outside her jurisdiction by overruling the presiding judge.⁽²⁾ 28 U.S.C.A. § 636

VII. Is the Magistrate Judge and defendants' lawyer privately collaborating on the Motion to Dismiss Amendment #2 by seeking to retroactively apply immunity to the plaintiffs' first amendment and contract claims?

The presiding judge in his Memorandum Opinion and Order conclusive decided immunity issues and Ordered that the plaintiffs' first amendment and contract claims will proceed to trial. (Memorandum Opinion and Order, Doc. # 37, ¶2, p4 and n1, p2-3), therefore, the Magistrate Judge again overrules the presiding judge and operates outside her jurisdiction.

Wherefore premises considered, plaintiffs request this Honorable Court as follows:

1. Place an injunction against the Magistrate Judge or in the alternative grant a Writ of Mandamus prohibiting the Magistrate Judge from further ruling upon dispositive matters;

2. Grant the plaintiffs an equal opportunity to respond to the defendants' pleadings before the Magistrate Judge issues Orders that dispositively decide the issue in the defendants' favor;

3. Specifically request a full disclosure of the extra-judicial associations between the Magistrate Judge and the defendants and their lawyer;

4. Demand findings of fact and conclusions of law, from the Magistrate Judge, on her Order DENYING the plaintiffs' Motion to Amend and Motion to Add Defendant. (Doc. #55 and #56)

Respectfully submitted,

________________________

James R. Blackston

________________________

Bradley W. Barber

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OBJECTIONS TO MAGISTRATE ORDERS and
MOTION FOR INJUNCTION AGAINST MAGISTRATE JUDGE or
PETITION FOR MANDAMUS

Footnotes:

1. The Magistrate Judge's Order granting the defendants' Motion to Stay Discovery and the plaintiffs' Response to Defendants' Motion to Stay Discovery crossed paths in the Mail.

2. The fact that a judge's remarks or rulings occur in a judicial context does not necessarily insulate them from scrutiny. In rare cases, we have required recusal when "such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party." Davis v. Board of Sch. Comm'rs, 517 F.2d 1044, 1052 (5th Cir.1975).

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