Francois Tabi v. John Doe No.1 ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | FRANCOIS TABI, Case No. EDCV 18-714 DMG(JC) 12 Plaintiff, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS, AND 14] JOHN DOE NO. 1, etal. STATES MAGISTRATE JUDGE 15 Defendants. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the original Complaint, 18 | the currently operative First Amended Complaint, all documents filed in support of 19 | and in opposition to the motion of Defendant Riverside Community College 20 || [District] (“RCC”) for judgment on the pleadings (“Defendant’s Motion”), and all 21 | of the records herein, including the June 13, 2019 Report and Recommendation of 22 | United States Magistrate Judge (“Report and Recommendation” or “R&R”), and 23 || Plaintiff's objections to the Report and Recommendation (“Objections” or “Obj.”). 24 | The Court has further made a de novo determination of those portions of the Report 25 || and Recommendation to which objection is made. The Court agrees with, and 26 || approves and accepts the Report and Recommendation, and overrules all of the 27 | Objections. The Court more specifically addresses some of the Objections below. 28 1 First, the Objections largely mischaracterize the Report and 2 || Recommendation, the facts, and the governing law, and essentially reassert mostly 3 || the same rambling, conclusory, and at times unintelligible, arguments Plaintiff 4 || previously raised, and which the Report and Recommendation properly concludes 5 || have no merit. 6 Second, Plaintiff's objection that he was not afforded a meaningful 7 || opportunity to comply with the September 14, 2018 Case Management and 8 || Scheduling Order (“Scheduling Order’’) is predicated on a distortion of the record 9 || and an incorrect conflation of the three current Doe Defendants referenced in the 10 || operative First Amended Complaint (“Current Doe Defendants”’) with Plaintiff's 11 || four proposed new defendants (“Proposed New Defendants”), only the latter of 12 | whom are the subject of Plaintiff?s November 1, 2018 request to amend.’ The 13 | September 14, 2018 Scheduling Order notified Plaintiff that in the event he did not 14 | amend/seek to amend his pleading to name the Current Doe Defendants within 60 15 || days, the Current Doe Defendants would be dismissed. [Doc. # 13 at 2.] Plaintiff 16 || has never sought leave to amend his pleading to name the Current Doe Defendants. 17 | The only portion of the Report and Recommendation that is predicated upon the 18 || Scheduling Order is the recommended dismissal of the Current Doe Defendants — a 19 20 'The three Current Doe Defendants referenced in the operative First Amended Complaint are an individual who was employed at RCC’s Student Activities Office on April 6, 2016 (Jane 22 || Doe No. 1) and two individuals who were employed at RCC’s Admissions Office on April 6, 2016 (John Doe No. 1 and Jane Doe No. 2). (FAC 9 19, 20.) Plaintiff's November 1, 2018 23 Opposition requests leave to amend to add four Proposed New Defendants — RCC’s past and 74 |) current presidents, Dr. Wolde-Ab Issac and Dr. Irving Hendrick, and two new proposed Doe Defendants who were RCC employees in February 2018. (Opp. 2-3, 10.) While Plaintiff 25 || suggests that affording him leave to add Drs. Isaac and Hendrick as defendants may assist him in identifying “unnamed defendants who were employees of RCC at the time that the events 26 described in the complaint occurred” — discovery he could have sought from such individuals 27 || irrespective of their party status before the expiration of the deadline to seek to amend with the names of the Current Doe Defendants — he has not sought leave to amend with the names of the 28 || Current Doe Defendants. 1 || recommendation which is entirely appropriate given the record. (R&R at 10). 2 | Contrary to Plaintiff's suggestion in the Objections (Obj. at 4), the Scheduling 3 || Order is not the predicate for the recommendation to deny Plaintiff leave to amend 4 || to add the Proposed New Defendants. In short, Plaintiff's objection that he was 5 || not afforded a meaningful opportunity to comply with the Scheduling Order is 6 || specious and is overruled.’ 7 Third, Plaintiff's suggestion that the Court should somehow have divined 8 || that he was requesting leave to file a second amended complaint suing Drs. Isaac 9 || and Hendrick for a “failure to train” based upon his conclusory non-specific 10 || allegation that they should “assume liability for their actions and non-actions|]” 11 | (Opp. at 2-3; Obj at 5) is simply incorrect. While pro se complaints are to be 12 || construed liberally and should not be dismissed if they state a claim under any 13 || legal theory — even if the Plaintiff erroneously relies on a different legal theory (see 14 | Haddock v. Board of Dental Examiners, 777 F.2d 462, 464 (9th Cir. 1985) — a 15 || court may not supply essential elements of a claim that have not been pled. See 16 | ——qewue ere 17 °The Report and Recommendation also recommends dismissal of the Current Doe Defendants — and only the Current Doe Defendants — based upon Plaintiffs failure to effect 18 service upon them within 90 days of the filing of the Complaint and his failure to demonstrate 19 good cause to extend such deadline. (R&R at 10). To the extent Plaintiff suggests that the Report and Recommendation recommends that anyone other than the Current Doe Defendants be 20 || dismissed for lack of timely service (Obj. at 6), he is mistaken. To the extent Plaintiff contends 1 that the Court should consider whether factors including the statute of limitations would warrant granting him an extension of time to serve the Current Doe Defendants, the Court has done so. 22 || The Court notified Plaintiff on April 12, 2018, that absent a showing of good cause, he had until July 5, 2018 to effect service upon each defendant. The September 14, 2018 Scheduling Order 23 || notified the parties that they may obtain discovery regarding any matter, not privileged, which is 24 relevant to the subject matter of this action and set a discovery deadline of January 14, 2019. [Doc. # 13 at 1-2.]. Aside from seeking leave to add new parties who might have knowledge of 25 || the identities of the Current Doe Defendants, the record is devoid of any indication that Plaintiff has made any efforts to discover the names of the Current Doe Defendants, let alone to serve 26 them. On this record, dismissal of the Current Doe Defendants based on lack of timely service is 27 appropriate. In any event, even assuming dismissal on such basis was not appropriate, dismissal of the Current Doe Defendants based upon the Scheduling Order would independently be 28 || appropriate. 1 | Chapman v. Pier | Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc) 2 | (‘[A] liberal interpretation ofa... civil rights complaint may not supply essential 3 || elements of [a] claim that were not initially pled.”) (quoting Pena v. Gardner, 976 4 || F.2d 469, 471 (9th Cir. 1992) (quotation marks omitted; ellipses in original). 5 || Moreover, Plaintiff's Objections reveal that he is merely speculating as to who is 6 || responsible for the alleged failure to train the employees about whose conduct he 7 || complains and accordingly cannot plausibly allege facts showing that Drs. Isaac 8 || and Hendrick caused such alleged violations. (Objs. at 3) (“Some persons in the 9 || upper hierarchy must take responsibility for [RCC’s] failure to train its employees. 10 || These persons are either the President of the College or perhaps the Regents and 11 || Trustees of the College. [§] The president of [RCC] or someone in the upper 12 || heirarchy [sic] must take responsibility for the shortcomings of the College.”).’ 13 Finally, to the extent Plaintiff otherwise asserts new arguments for the first 14 | time in his Objections, the Court exercises its discretion to decline to consider 15 || them. See United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000), cert. denied, 16 } 534 U.S. 831 (2001). 17 IT IS THEREFORE ORDERED: (1) this action is dismissed without 18 prejudice as against the Current Doe Defendants (John Doe No. 1, Jane Doe No. 1, 19 | and Jane Doe No. 2); (2) Defendant’s Motion is granted to the extent it seeks 20 || judgment on the pleadings in favor of RCC on Plaintiff's sole federal claim, i.e., 21 his first claim which arises under 42 U.S.C. § 1983; (3) the Court declines to 22 || exercises supplemental jurisdiction over Plaintiff's remaining state law claim 23 || against RCC, i.e., his second claim which alleges the intentional infliction of 24 || emotional distress; (4) leave to further amend is denied; and (5) the Clerk shall 25 26 *In any event, the denial of leave to amend is independently predicated on Plaintiff's 27 || failure to comply with Local Rule 15-1 by attaching a copy of a proposed second amended complaint — a deficiency Plaintiff has not remedied notwithstanding the notice afforded 28 || regarding the same in the Report and Recommendation. 1 || enter Judgment accordingly. 2 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 3 || the Judgment on Plaintiff and counsel for Defendant RCC (the only defendant who 4 || has appeared in this action). 5 IT IS SO ORDERED 6 || DATED: August 26, 2019 7 f 9 DOLLY MW. GEE 10 UNITED*STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28