pro bono capacity thank you for your involvement and we're going to try and split the arguments they which i know sometimes it's difficult i will be handling the consent argument as well as the improper evidence admitted at trial arguments while my colleague will be handling the motion for substitution argument and how are you going to handle rebuttal or you care about that we'd like to try and save two minutes for a bottle but that's the goal ok all right so just briefly your honor and all of your honor sort of touched on this in the past case and the reason that is so important as i believe one of the judges point out in the last four argument is the good cause fandor which comes from six hundred and thirty six c four specifically states that only applies when there has been a referral pursuant to six  the eastern district that have dealt with this issue and usually what happens is the district court says we'll give you a new consent form and you can decline because the status quo hasn't changed the district court is still a jew decayed in this case and the magistrate will be able to oversee discovery matters that's what should have happened in this case instead the magistrate applied the good cost entered found there was no good cause and refused my client's attempts to withdraw his consent after that happened almost a year later defendants finally decided to consent at that point for the st time the case was assigned to a magistrate pursuant to six hundred and thirty six dollars c and he tried the case had the motion to withdraw consent been properly adjudicated with no good cost entered there never would have been mutual consent the magistrate would not have tried the case and it should have been difficult and so there's clear th circuit precedent that states when that happens the judgment is an oldie and we need to  district or try the case so from your perspective your client consented the other side declined consent your client then shot removal up with brawley consent actually none was probably needed because the other side had declined consent or do you take that position i think he did need to i think our position would be he didn't mean to ask to position that yes the previous counsel's interpretation of the rule is correct but regardless even if the magistrate could oversee this which maybe he couldn't there never should have been a cost energy applied should have been as a matter of course you get you can decline your consent because the other side has declined their consent and the case is currently from a district court judge and that's where it will remain and that's what should have happened and the magistrate judge could do that i think our position would be the magistrate judge can do that but i know you know that he didn't he didn't and there are multiple cases where the same magistrate has not done that so i think there's just maybe a little confusion about the practical effect from your perspective is when the district judge this for a trial it was improper because you're not there was not mutual consent correct because we're the only reason there was a mutual consent was because my client's request to withdraw was improperly denied there's no standard instead a good c as a practical matter this case would never get tried if it went to the district court properly probably because of the burdens on the district courts that's possible your honor i'll just make two quick points in response to that the st is at the time i it's kind of the elephant in the of course at the time my client's thoughts withdraw consent trial had not even been set yet this was very early on in the case and so there was someone objects it's supposed to go to district court and so not only do you have the statue but you have the eastern district itself who presumably knows its own availability issues and knows about why magistrates are important still saying that in cases like this you know a k three only applies to cases brought by incarcerated inmates in cases like this because of the you know equities at stake we're still going to allow someone to object and go to a district court judge even if there are concerns about the burden on the dis court if there aren't any more questions regarding consent i'll quickly move on to i want a couple of quick points about the evidence that was admitted at trial this trial alternately was about credibility and it was about whose version of events to believe  their use of force expert even testified that if our client was telling the truth the force was unreasonable so in other words this was a run of the mill case where there was a stipulated set of facts and the question was was force reasonable or not it was my client claims he preowned out or lay down as instructed whereas the defendants claim he didn't lay down in fact he tried to join the fight and so the only operative question on trial was which version of those events to believe so with that operative question we now look at the two evidence excuse me two pieces of expert testimony that were challenging that would be to gain expert testimony of officer hunter and the use of force expert testimony random gains that no one alleged that our client participated in at one point the expert turned to the jury and said these people are in your neighborhood committing crimes i don't know how that possibly could have been relevance well it was worse in that he said quote the local street that you guys are trashing the jury live on these hits are that are murders or whatever that's taking place out on the screen as far as this criminal enterprise is taking place because of members house and the california department of correction and rehabilitation and then he added that it was important quote to make sure that we're monitoring everything that's going on so we can prevent murray under and different things taking place out on the street and sentra cetera correct your honor any problem you got there will hear what the other side has to say but there is no objection right i want to dress up briefly to allow my colleague time to argue substitution but the brief answer to that your honor is that this testimony was so bad for both the use of force and the gain expert that the court sue a sponsor a cold my client if he was his own lawyer and the other side to a bench conference to talk about it and the point of making an objection is to make sure that the judge has a chance to flag the issue and has a chance to make a ruling on it he did that on his own by susan say asking the other side for an offer proof and asking what's the point of the testimony was there no more questions on what might really take over district court however dismissed mr gilmore's deliberate indifference claim against defendant torres because mr gilmore did not locate and substitute in the representative a defendant or as a state within the ninety days provided by rule twenty five dollars a covering the substitution of parties as a plenary matter your honour's the attorney general and nets that they have no stake in the substitution issue because they claim they never represent represent a defendant or as is a state where any distributes he it's really unclear why the the attorney general has advanced opposition arguments here on the heel and he had bent the court  seaton's representative it's undisputed in this case that the news of death was never served on the representative of the estate to prove a service only shows that it was served on mr gilmore the plaintiff and for that reason the ninety day clock was never triggered and there was no of mr gilmore six motions to substitute in the proper party the magistrate ironically put the burden on mr gilmore to identify the personal representative but the burns and never been on mr gilmore it should have been on defendants who filed the notice of death to conclude otherwise would open the door to tactical maneuvering whereby the burden is placed on the party who does not file the notice the death to locate the represent of the state within ninety days or else have their valid claim dismissed which could be particularly problematic when perhaps here the deceit in state has not even gone through pro grade yet and we don't even know if there is a personal representative out there to begin with here because the fence filed the notice the death of a as between defendants and mr gilmore they were in a far superior position to identify the person representative indeed the notice of death actually said defendants were counsel for defendants or as this suggests that an attorney client relationship may have existed between the attorney general's office torres even if the attorney general's office did not formally appear in the case yet now the a g in their brief says that while there was no clear path to represent defendant tours as representative well i'd fundamentally disagree there was certainly a clear path torres was a state employee the attorney general represents state employees including all the other defendants in this action the record also suggest that the state has contact information for defendant church whereas again he's an employee and also for his wife mrs torres and the record also shows that no later than december th teen the prison litigating litigation coordinator use that com contact information at the prison or has to contact mrs to defendant or is was for deliberate indifference it was dismissed before trial it was never tried so the remedy here would be to remain on the case back to the district court the defendant should then fil notice to death identifying the personal representative after that then mr gilmore would have ninety days to substitute in the personal representative for deceit and torres at which point the personal representative steps into the shoes of the service would then need to be effectuated on the personal representative which would get personal jurisdiction over the person represented in the case would proceed and out at that point if the person represented believes that he or she has defenses to these claims whether that may be sacha limitations latches or whatever else they can raise those through the normal procedure such as a motion to  the situation where the party had previous sees the proper filing a complaint again that's not the situation here there was a proper filing a complaint no one disputes that it was untimely and then that a c then died before service a lot so add that service the late here by no fault of mr gilmore there's a statutory screening procedure for and mates who have filed claims against state employees and that such a tory screening procedure took more than a year and a half before finally did this or a court ordered service on the defendant and during that year and a half is when defendant torres had died now if that statutory screening procedure was not in place the normal rules rule for would have applied service would have been done within ninety the assertion that there is a stat to be a statue of limitations problem here again there is not because upon substitution the personal representative steps into the shoes of defendant torres and the complaint was finally filed against him and i will reserve the rest of our time for about  testimony at trial and applied the correct standards in what about all this stuff that came in from mr hunter the is i understand it the only relevance of his testimony to the issues in the case was to show that the plaintiff was a gang member and therefore that rather than lying down as he claimed at the time he was pepper spray and so forth actually he was on gang waters assisting in the know i can see the relevance of all that but mr hunter went far beyond that and described in the most graphic terms how this gang was responsible for birders out there that the jurors themselves would be on quote the local street that you guys live on you guys being the jury and he was talking to directly at that point officers that were killed were killed by members of this particular gang and all sorts of stuff highly highly emotional inflammatory prejudicial how  justify that st of all your honor i'd like to point out that not only was mr gilmore a gang member but the two inmates who started to fight were gang members and one of the officers who was trying to stop this fight knew that so that was tied to mr gilmore that's not why not that's the point now is not the focus of the testimony so even if that were the case that it was it should not have been your admitted your honor it was harmless the evidence but but but with respect counsel you're talking about people on the jury hearing the kind of thing that judge rakes off as read i would just scare the heck out of them would wouldn't that get them personally involved and make them feel sorry for the officers who were killed and basically what they were saying you know this this guy is a murderer and you make murder you that's pretty inflammatory and yes your honor but with the testimony showed is that there were three officers who were trying to stop mr gilmore from becoming involved and making a fight bigger than it already was and the jury also heard testimony about their efforts to temper their use of force there was extensive testimony in the record about the fact that they had other force options available to them so it would not have affected the verdict because the records show that the force was not excessive under whitley versus albert or under hudson versus mcmillan and that's what show that you know are you saying it would not be s upposing he he had said to the jury this guy is a member of the black a real a family gang and regardless of anything  else that is such a bad organization such an evil organization think you want to convict him just because he's a member of that gang are you saying in my obviously extreme hypo that that would still not be was somehow part of the theory of the case i think there might be a different question there but that's not what happened here well but yes and that exists in effect what he said to the jury no your honor that is not what he was asked how the jury decide the case about it all ok i can't i can't speak to why he said those things but the gist of his testimony was really focused on mr gilmore's own motivation for joining as this fight we also have mr gilmore's own admission that he said i'm not going to help anyone anymore and that if we if we disagree with you and conclude that this was highly highly prejudicial what do we do watch our remedy then a back for a new trial yes or no you would have to if you if you believe that testimony was improper but i would submit the honor should look very closely at the other evidence that was introduced at trial to make that determination because overall that short piece of testimony was harmless i'd like to turn to  because his motion was based solely on his disagreement with the magistrate judges discovery orders now in this case it is correct that the case had not been referred to a magistrate under the consent provisions of section six  but that doesn't end the question because under this court's precedent in the united states versus neville and dixon versus eels it's the initial consent of the voluntariness of consent so if there is an issue with the magistrate judge deciding that then this court could send it back for the district judge to decide or this court could decide it in the st issue instance because it is a legal question and because mr gilmore's motion itself was not sufficient but those cases are instructive because they do provide that the consent of the right in itself is personal to that litigant and once that litigant voluntarily waves th must be some standard then for two requests to withdraw that waiver and that even if the other side has not consented yes your honor because the other side's consent is really immaterial to the st part s the issue there was that if if that if if were talking not about vacating a reference to a magistrate judge but simply or a ritual motion then the magistrate judge could certainly decide that at that point and that's really what this was mr gilmore was essentially trying to recuse this particular magistrate because he thought he showed partiality and a magistrate could certainly have ruled on that magistrate judge also looked into a recusal case in deciding the motion to rescind consent and he looked to the fact that the case had proceeded expeditiously that's far that as in the oval i thought this case it got on for years well i wouldn't say it was either more or less expeditious than and average case should testify before congress the motion itself did not show good cause and it cannot be that mr gilmore once his right was waived could then withdraw that waiver without making some showing and i think carter versus sealand services is instructive on that issue because it actually points points to other circumstances where a party does affirmatively waive a right for example a right to a jury trial and then must make a showing as to why he wants to withdraw that waiver later on in the case because the right is personal litigants whether or not defendants had consented shouldn't matter to this court in deciding whether or not mr gilmore had to make some issue and whether or not it was extraordinary circumstances i don't think that would be my face but it should hard showing right sit in this case it's also a question of to whom he has to make the showing yes your honor but if if that is the only issue then this court could decide whether or not his motion was sufficient in the st instance or remained to the district court to make that determination i'd also like to just substitution issue officer torres was deceased before he would die before he was served and my office did not represent him at any point in the district court action marshals procedures that's correct and because of the procedures for screening of prostate complaints but that shouldn't affect officer torres's lack of notice in this case i mean that's really the central issue is whether or not he was represented at that time or had notice of this lawsuit and he didn't for that reason barlow versus ground is distinguishable because the ninety day clock did start to run and barlow itself again knowledge is that when the party filing the suggestion of death doesn't have information about a representative that's a different case from the one they addressed randy versus k is didn't start this court should find that mr gilmore was given plenty of chances to find the proper party for substitution in fact he got discovery from counsel for other defendants about the proper party counsel did not have that information because counsel did not represent officer taurus but what mr gilmore then provided to the court was a bad faith declaration showing that he'd asked his fiance to lie to officer tour as his  widow and say i am from the department of veterans affairs and i'm processing a death benefit check for that reason i need to know about your if you represent officer taurus's state so what the district court was left with was a hearsay declaration where mr gilmore was essentially showing that he didn't ask the widow of officer torahs in good faith if she was the proper party for under the subsection obviously that means under the subsection two more quick points i promise gilmore had a viable claim and for the deliberate indifference as the magistrate ruled with the screen order so under their read that deliber that good claim goes away because of screening or procedures there's no casing the burn should be on him that's improper and finally as to what this court should do henri mand we believe substitution should be allowed which would reinstitute the deliberate indifference claim the trial should be really held by a district court judge because the consent should have been properly withdrawn and the court should give some instruction regarding the evidence that came in whether or not that justifies a new trial if mr graham was getting one anyway i think the court c and the court stand in recess for the day