Hirano v. Davidson ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas A Hirano, No. CV-20-00165-PHX-MTL (DMF) 10 Plaintiff, ORDER 11 v. 12 Unknown Davidson, et al., 13 Defendants. 14 15 Before the Court is Plaintiff Douglas Hirano’s appeal (Doc. 12) from the Magistrate 16 Judge’s July 31, 2020 Order (Doc. 11). For the reasons discussed herein, the appeal is 17 denied. In addition, the Court will dismiss this action in its entirety because Plaintiff has 18 failed to satisfy the Court’s Order to Show Cause (Doc. 8) and has not timely served any 19 Defendant in this case. 20 I. 21 On January 21, 2020, Plaintiff filed a Prisoner Civil Rights Complaint (the 22 “Complaint”). (Doc. 1.) On March 13, 2020, the Court noted that Plaintiff had paid the 23 filing fee and ordered that Plaintiff must either serve each Defendant or seek a waiver of 24 service of each Defendant within 90 days of the filing of the Complaint or the action may 25 be dismissed as to each Defendant not served. (Doc. 5.) Plaintiff moved for an extension 26 of time to effectuate service of Defendants on April 28, 2020. (Doc. 6.) In an Order entered 27 on May 8, 2020, the Magistrate Judge noted that Plaintiff was no longer in custody and 28 granted the motion in part, extending Plaintiff’s deadline to complete service of process or 1 obtain a waiver of service to July 7, 2020 and directing the Clerk of Court to send Plaintiff 2 a service packet including the Complaint, the Court’s March 13, 2020 Order, the May 8, 3 2020 Order, and both summonses and request for waiver forms for Defendants. (Doc. 7 at 4 3.) 5 Plaintiff did not provide the Court with proof of service before that deadline expired. 6 Accordingly, on July 17, 2020, the Magistrate Judge entered an Order to Show Cause, 7 allowing Plaintiff 14 days to effectuate service of Defendants or “show cause in writing 8 why the case should not be dismissed for failure to timely serve any of the defendants in 9 this matter.” (Doc. 8.) Instead of responding to the Order to Show Cause, Plaintiff, on 10 July 28, 2020, moved “to hold this action in abeyance until [he] notifies the Court that he 11 is ready to proceed.” (Doc. 10 at 2.) In that motion, Defendant stated he “was unexpectedly 12 returned to prison on June 14, 2020,” he “was immediately placed in solitary confinement 13 for 14 days” pursuant to the Bureau of Prisons’ pandemic quarantine policy, and that he 14 lacked access to his “legal documents.” (Id. at 1–2.) The motion further noted that Plaintiff 15 “may be released to a residential drug treatment program within 30 days.” (Id. at 2.) 16 On July 31, 2020, the Magistrate Judge denied Plaintiff’s request to hold this action 17 in abeyance and determined Plaintiff had not satisfied the Order to Show Cause, noting 18 that “a few days remain[ed] for Plaintiff to respond” to that Order. (Doc. 11.) Plaintiff then 19 filed the pending appeal. (Doc. 12.) 20 II. 21 Within 14 days of being served a copy of a magistrate judge’s order deciding a 22 pretrial, nondispositive matter, “[a] party may serve and file objections to the order.”* Fed. 23 R. Civ. P. 72(a). The district judge “must consider timely objections and modify or set 24 aside any part of the order that is clearly erroneous or is contrary to law.” Id. 25 Here, Plaintiff objects to the Magistrate Judge’s July 31, 2020 Order. His objection 26 is premised largely on facts asserted for the first time in his objection. Specifically, Plaintiff 27 * Where, as is the case here, the effect of a motion to stay is not the denial of relief, the 28 motion is a non-dispositive matter that may be determined by a magistrate judge. S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013). 1 alleges that he “attempted, on numerous occasions, to serve the Defendants in this case,” 2 he went to the United States Marshal’s service in Honolulu, Hawaii, and he then called the 3 United States Marshal’s service in Arizona “more than five times” but “reach[ed] a 4 recording that promptly hung-up” each time. (Doc. 12 at 1.) Plaintiff further explains he 5 subsequently “fell seriously ill with Ulcerative Colitis,” which required him to seek 6 “Emergency Room care” on two occasions. (Id.) And he contends he “already paid more 7 than $800 in filing fees and administrative costs” and states that “dismiss[ing] this case 8 would require [him] to pay another $400 to [refile] the case.” (Id.) In addition to those new 9 allegations, Plaintiff reiterates that he does not have his legal documents and anticipates 10 placement in a residential drug treatment program. (Id.) 11 This Court “has discretion, but is not required, to consider evidence or arguments 12 presented for the first time in objections to a [Magistrate Judge’s order].” Bland v. 13 Rodriguez, 2020 WL 5793806, *1 (E.D. Cal. Sept. 29, 2020) (citations omitted); see Brown 14 v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). Exercising that discretion, the Court will not 15 consider the newly alleged facts. The Ninth Circuit has observed: 16 [A]ffording district courts discretion to consider new evidence 17 makes prudential sense. The magistrate judge system was designed to alleviate the workload of district courts. To require 18 a district court to consider evidence not previously presented 19 to the magistrate judge would effectively nullify the magistrate judge’s consideration of the matter and would not help to 20 relieve the workload of the district court. 21 22 United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000) (internal citations and quotations 23 omitted). In addition to those prudential concerns, Plaintiff has made no attempt to explain 24 why he was unable to assert the new facts in response to the Court’s Order to Show Cause 25 or in his motion for abeyance. Accordingly, the Court will not consider the facts Plaintiff 26 raises for the first time in his objection. 27 The Court further finds that no part of the Magistrate Judge’s July 31, 2020 Order 28 is clearly erroneous or contrary to law. “A district court has discretionary power to stay 1 || proceedings in its own court... .” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2|| 2005). The Magistrate Judge denied Plaintiff's motion because he had “not shown good cause for any stay of this matter, let alone an indefinite stay.” (Doc. 11 at 2.) And the 4|| Magistrate Judge further noted that Plaintiff has “had sufficient time since March 13, 2020, 5 || to effectuate service, including before his recent incarceration.” (/d.) Clear error exists only 6|| if the Court is “left with the definite and firm conviction that a mistake has been 7|| committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001). That is not the case here. 8 If. 9 Accordingly, 10 IT IS ORDERED denying Plaintiff's Objections to Magistrate’s Order (Doc. 12). 11 IT IS FURTHER ORDERED that Plaintiff's request that the Court send him a || copy of the Complaint in this action is granted. (Doc. 14.) The Clerk of the Court shall mail a copy of the Complaint (Doc. 1) to Plaintiff. 14 IT IS FURTHER ORDERED dismissing this action in its entirety, without 15} prejudice, because Plaintiff has not satisfied the Court’s Order to Show Cause (Doc. 8) and □□ has not timely served any Defendant in this matter. 17 IT IS FINALLY ORDERED that the Clerk of the Court shall close this case. 18 Dated this 7th day of December, 2020. 19 “0 Wichal T. Hburde 71 Michael T. Liburdi 22 United States District Judge 23 24 25 26 27 28 -4-