Johnston v. Gutierrez

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Andrew J. Johnston,
Petitioner,
v.
B. Hudson, Warden,
Respondent.
No. CV-25-0164-TUC-SHR (EJM)
ORDER
Pending before the Court is Petitioner's Motion to Strike Referral to Magistrate
Judge and Lift Stay (Doc. 23).
As an initial matter, Petitioner argues "the Court referred this action to the
magistrate judge without [P]etitioner's written consent." Citing Aldrich v. Bowen, 130 F.3d
1364 (9th Cir. 1997), Petitioner asserts consent of the parties is required for the magistrate
judge's jurisdiction. Aldrich recognizes a magistrate judge must have written consent of
the parties to enter judgment in a civil case. Id. at 1364–65; see 28 U.S.C. § 636(c)(1)
(stating "[u]pon the consent of the parties, a full-time United States magistrate judge . . .
may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of
judgment in the case"). In the instant case, however, this Court designated Magistrate
Judge Markovich "to hear and determine any pretrial matter pending before the court" and
to submit a report and recommendation on the "petition[] challenging conditions of
confinement" pursuant to 28 U.S.C. § 636(b). See Fed. R. Civ. P. 72(b)(1); LRCiv 72.1(c),
72.2(a)(2). Consent of the parties is not required for such a referral. Fed. R. Civ. P.
72(b)(1). The Court will not withdraw the referral.
Case 4:25-cv-00164-SHR-EJM Document 25 Filed 01/09/26 Page 1 of 2

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On October 22, 2025, Magistrate Judge Markovich issued an Order (Doc. 17)
staying the instant case pending resolution of Johnston v. Gutierrez, No. CV-24-00005-
TUC-SHR. For reasons of judicial economy, the stay will remain in effect. See Yong v.
I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000) (recognizing the propriety of a stay in a habeas
case while awaiting a determination in a parallel case in the same court).
IT IS ORDERED Petitioner's Motion to Strike Referral to Magistrate Judge and
Lift Stay (Doc. 23) is DENIED.
Dated this 9th day of January, 2026.
Case 4:25-cv-00164-SHR-EJM Document 25 Filed 01/09/26 Page 2 of 2