(PS) Miller v. Sacramento City Unified School District ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SONIA MAREE MILLER, No. 2:21-cv-0757-JAM-CKD PS 12 Plaintiff, 13 v. ORDER 14 SACRAMENTO CITY UNIFIED (ECF No. 15) SCHOOL DISTRICT, et al., 15 Defendants. 16 17 18 On August 24, 2021, plaintiff, who is representing herself in this action, submitted a filing 19 containing objections to the undersigned’s findings and recommendations issued August 11, 20 2021. (ECF Nos. 14, 15.) Plaintiff’s objections are timely and will be considered by the assigned 21 district judge when he decides whether to adopt the findings and recommendations. See 28 22 U.S.C. § 636(b)(1). However, the undersigned issues this order in response to plaintiff’s filing 23 because it also contains various substantive requests and misunderstandings. 24 I. The Role of the Magistrate Judge in Pro Se Cases 25 First, plaintiff expresses confusion regarding the undersigned’s role as the magistrate 26 judge assigned to her case. Plaintiff points out that she has elected not to consent to magistrate 27 judge jurisdiction for all purposes in this case, see 28 U.S.C. § 636(c). (ECF No. 15 at 1, 3; see 28 ECF No. 4.) That is perfectly fine, as there is of course no obligation to consent. However, 1 because plaintiff is self-represented (proceeding “in propria person,” or “pro se” in legal 2 terminology), the undersigned will still handle all pretrial matters in this case as dictated by this 3 court’s Local Rules and permitted by federal law. See E.D. Cal. L.R. 302(c)(21) (referring all 4 Sacramento cases in which a party proceeds in propria persona to a magistrate judge); 28 U.S.C. 5 § 636(b)(1); Fed. R. Civ. P. 72(b). The following explanation may improve plaintiff’s 6 understanding of this admittedly complex judicial structure. 7 The Federal Magistrates Act, 28 U.S.C. §§ 631–39, governs the jurisdiction and authority 8 of federal magistrate judges. See 28 U.S.C. § 636. “The Act provides that certain matters (for 9 example, non-dispositive pretrial matters) may be referred to a magistrate judge for decision[.]” 10 United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (citing 28 U.S.C. 11 § 636(b)(1)(A)). Meanwhile, “certain other matters (such as case-dispositive motions, petitions 12 for writs of habeas corpus) may be referred [to a magistrate judge] only for evidentiary hearing, 13 proposed findings, and recommendations.” Reyna-Tapia, 328 F.3d at 1118 (citing 28 U.S.C. 14 § 636(b)(1)(B)). Again, in the Sacramento division of this court, all motions filed in cases where 15 one of the parties is self-represented are referred to magistrate judges. E.D. Cal. L.R. 302(c)(21). 16 If the motion is non-dispositive, a magistrate judge can decide the motion herself. If the motion is 17 dispositive, the magistrate judge will issue findings and recommendations to the district judge. 18 Dispositive motions include, for example, a motion for default judgment because such a 19 motion would “dispose” of the case by resolving the claims at issue (for instance, by entering 20 judgment in plaintiff’s favor). Thus in this case, abiding by § 636(b)(1)(B), the undersigned 21 issued “findings, and recommendations” regarding plaintiff’s recent motion for default judgment. 22 (ECF Nos. 13, 14.) Those findings and recommendations, along with plaintiff’s timely objections 23 (and any reply from defendants), will then be reviewed by District Judge Mendez, who may 24 accept, reject, or modify the findings and recommendations in a forthcoming order deciding the 25 motion. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(1)-(3). 26 Conversely, non-dispositive pretrial matters can be decided by a designated magistrate 27 judge without issuing findings and recommendations to a district judge. See § 636(b)(1)(A); Fed. 28 R. Civ. P. 72(a). Non-dispositive pretrial matters include a wide range of motions and other 1 requests that would not “dispose” of the case. Plaintiff’s earlier request for e-filing privileges and 2 defendants’ requests for extensions of time to respond to the complaint constitute non-dispositive 3 pretrial matters. Accordingly, the undersigned properly decided those matters without the 4 involvement of a district judge. (ECF Nos. 9, 14 at 6.) 5 Although non-dispositive matters do not require findings and recommendations, any party 6 may request that the district judge reconsider a magistrate judge’s decision on a non-dispositive 7 matter by filing an objection within 14 days of the magistrate judge’s decision. 28 U.S.C. 8 § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The magistrate judge’s decision will only be set aside if it 9 is “clearly erroneous” or contrary to law. Id. 10 In plaintiff’s August 24, 2021 filing, she requests “reconsideration” of both the 11 undersigned’s recommendation to deny her motion for default judgment and of the undersigned’s 12 order denying her request for e-filing privileges. (ECF No. 15 at 1, 4.) Plaintiff also attaches a 13 form application for permission to participate in e-filing in this case. (Id. at 22.) As explained 14 above, the default judgment motion is still pending before the district judge, who will consider 15 whether to adopt the recommendation to deny that motion. 16 Because plaintiff timely objected to the undersigned’s simultaneous order denying e-filing 17 privileges, the district judge also must consider those objections and “modify or set aside any part 18 of the [e-filing] order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see 19 28 U.S.C. § 636(b)(1)(A). District Judge Mendez will address all of plaintiff’s objections in due 20 course. 21 To the extent plaintiff is also making a new request for e-filing privileges, that request is 22 again denied without prejudice. Because it is not clear whether this case will proceed beyond the 23 pleadings stage, the court currently does not find good cause to depart from the default rule in this 24 district not to permit self-represented litigants to e-file.1 See E.D. Cal. L.R. 133(b)(2). 25 1 The court understands that e-filing would be more efficient for plaintiff and does not assume 26 that plaintiff would try to misuse the system. If plaintiff demonstrates that she can follow the 27 procedural rules as the case moves forward, the undersigned will look favorably on future motions for e-filing privileges—should the case proceed beyond the pleadings stage. 28 1 All parties are advised that any motions filed in this case should be noticed for hearing 2 before the undersigned (not before Judge Mendez) unless plaintiff becomes represented by an 3 attorney.2 4 II. Service of Defendant Yang 5 Second, plaintiff explains her continuing difficulty in locating and serving process on one 6 of the defendants named in her complaint, Judy Yang. (ECF No. 15 at 7.) The undersigned 7 granted plaintiff 30 additional days to serve defendant Yang, or to dismiss the claims against her. 8 (ECF No. 14 at 5, 7.) That deadline expires on Friday, September 10, 2021. Plaintiff states 9 that, due to her inability to locate Ms. Yang, she “will probably let the 30 days run out” and that 10 she will “not dismiss the claims but if [they] default[], [they] default[].” (ECF No. 15 at 7.) 11 This proposed passive route to dismissal is not proper. Plaintiff is instructed instead to 12 follow one of the two options provided in the undersigned’s previous order. She must file with 13 the court either (A) a certificate of service on defendant Yang (or waiver of service), or (B) a 14 notice of voluntary dismissal of the claims against defendant Yang. Alternatively, plaintiff may 15 request a further extension of time to serve Ms. Yang, which would need to show good cause. 16 See Fed. R. Civ. P. 4(m). If plaintiff fails to take one of these actions by the 30-day deadline, the 17 undersigned will recommend dismissal of the claims against Ms. Yang with prejudice for failure 18 to comply with the court’s orders. See Fed. R. Civ. P. 41(b). 19 III. Opposition to Defendant Hernandez’s Motion to Dismiss 20 Third, plaintiff’s August 24, 2021 filing states that she “enclosed” a “motion to oppose” 21 the motion to dismiss brought by defendant Norman Hernandez which is set for hearing on 22 September 29, 2021. (ECF No. 15 at 7; see ECF No. 12.) Plaintiff’s filing contains two 23 paragraphs responding to certain arguments raised in the Hernandez motion to dismiss. (ECF 24 No. 15 at 7-8.) No further opposition is attached to plaintiff’s filing. 25 It is not proper to combine (A) an opposition to a motion and (B) objections to findings 26 and recommendations within the body of the same filing. Each performs a separate procedural 27 2 In this court, even those motions for default judgment that are filed by parties represented by an 28 attorney are referred to a magistrate judge. See E.D. Cal. L.R. 302(c)(19). 1 function and requires a separate filing. (Plaintiff may of course send the court more than one 2 filing within the same mailing, but each filing should be separated with its own title/caption page 3 so that it can be docketed and addressed separately.) 4 Should plaintiff wish to file a more complete opposition to defendant Hernandez’s 5 motion to dismiss, she may do so up until the September 15, 2021 deadline. See E.D. Cal. 6 L.R. 230(c) (requiring opposition or statement of non-opposition to be filed no less than 14 days 7 before hearing date). If no formal opposition is received by that date, the court will treat the 8 arguments contained on pages 7 and 8 of plaintiff’s present filing as her opposition to 9 defendant Hernandez’s motion. (See ECF No. 15 at 7-8.) In the future, plaintiff is instructed to 10 file separately any opposition to a motion. 11 IV. Additional Complaint Exhibits 12 Finally, plaintiff attaches to her August 24, 2021 filing various exhibits that she states she 13 “left off” of her original complaint. (Id. at 9.) This is not the proper way to add material in 14 support of a complaint, not does it appear that these exhibits are necessary additions to the 15 complaint. Plaintiff has already attached to her current complaint more than 200 pages of 16 exhibits, and as a general matter, no documentation or “proof” of one’s allegations are even 17 required at the pleadings stage. In order to survive a motion to dismiss, a complaint need only 18 contain good-faith factual allegations that plausibly state a claim for relief. 19 If plaintiff still wishes to add these (or other) further exhibits to her complaint, at this 20 point she would need to either file a noticed motion for leave to amend the complaint under 21 Federal Rule of Civil Procedure 15, or obtain all defendants’ consent to amend the complaint to 22 add in the desired exhibits. See Fed. R. Civ. P. 15(a)(2).3 In addition to explaining the need for 23 amendment, any motion to amend would have to comply with Local Rule 137(c) (governing 24 documents requiring leave of court) by attaching a copy of the proposed amended complaint 25 along with all exhibits. 26 27 3 Plaintiff’s window to amend the complaint as a matter of course under Rule 15(a)(1) already expired, since it has been more than 21 days since she served the complaint and more than 21 28 days since service of defendant Hernandez’s motion to dismiss. 1 ORDER 2 In accordance with the above explanation, IT IS HEREBY ORDERED that: 3 1. Plaintiff's renewed request for e-filing privileges (ECF No. 15 at 1, 4) is DENIED; 4 2. Should plaintiff wish to file a formal opposition to defendant Hernandez’s motion to 5 dismiss (ECF No. 12), she may do so up until September 15, 2021; and 6 3. No later than September 10, 2021, plaintiff shall file with the court one of the 7 following: 8 a. Acertificate of service demonstrating that defendant Yang has been served (or 9 has waived service), 10 b. A notice of voluntary dismissal of the claims against defendant Yang, or 11 c. A request for a further extension of time to serve defendant Yang, for good 12 cause. Failure to comply with this order will make plaintiffs claims against 13 defendant Yang subject to dismissal pursuant to Fed. R. Civ. P. 41(b). 14 | Dated: August 31, 2021 / aa / x ly a 1s CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 19.mill.757 20 21 22 23 24 25 26 27 28