Richard Martinez, Plaintiff-appellant, v. Curt Staudt and Darrin White, Who Are Grand Junction Policeofficers, Defendants-appellees,united States of America, Amicus Curiae, 831 F.2d 926 (10th Cir. 1987)

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US Court of Appeals for the Tenth Circuit - 831 F.2d 926 (10th Cir. 1987) June 24, 1987

Before HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, and BALDOCK, Circuit Judges.

An opinion was filed in this case on March 30, 1987, holding that the district court was without jurisdiction to refer the prisoner's section 1983 action to the magistrate for trial. [Previously published in advance sheet] Martinez v. Staudt, 815 F.2d 585 (10th Cir. 1987). Before the mandate was to issue 21 days later, see Fed. R. App. P. 41(a), the court stayed it on its own motion.

The original appeal in this case was filed pro se. Whether the magistrate had subject matter jurisdiction was an issue that was not decided by the district court nor raised on appeal by Martinez. This court raised the issue sua sponte, appointed counsel for Martinez, and ordered the issue briefed and argued. The issue is an exceptionally important one that affects several pending appeals in addition to this case. On its own motion, the court has voted to en banc the case and to entertain oral argument limited to the following issue:

Does the district court have authority under 28 U.S.C. § 636(b) (3) to refer to the magistrate, without the consent of the parties, a prisoner section 1983 action that does not constitute a challenge to conditions of confinement, where no jury has been requested and the referral requires the magistrate to submit to the court proposed findings of fact and recommendations for disposition?

The case will be heard at the September term of court. The court directs the parties to file supplemental briefs limited to the jurisdictional issue as follows: Appellant's brief shall be filed on or before July 15, 1987; Appellees' brief shall be filed within 21 days after appellant's brief is filed; Appellant may file a reply brief within 14 days after appellees' brief is filed.

The panel opinion filed on March 30, 1987 is withdrawn.