(PS)McGee v. Mansfiled ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILOMENA G. MCGEE and No. 2:21–cv–2216–KJM–KJN PS DONALD M. BIRD, 12 ORDER Plaintiffs, 13 (ECF No. 13.) v. 14 KIMBERLY MANSFIELD, et al., 15 Defendants. 16 17 On December 2, 2021, plaintiffs filed the instant action, alleging multiple claims against 18 officers of the California Department of Justice related to an April 2021 search and seizure at 19 plaintiffs’ residence.1 Defendants moved to stay the case under Wallace v Kato, 549 U.S. 384, 20 393-94 (2007), noting plaintiff Bird’s criminal proceedings in Sacramento Superior Court were 21 currently ongoing (21-MI-012753), and conviction would require dismissal of this civil case 22 under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (ECF No. 7.) Plaintiffs did not respond. 23 The court granted the motion, stayed the case, and ordered that within 30 days of the resolution of 24 the criminal case, the parties were to file a joint statement stating their positions on how to 25 proceed with the case. (ECF No. 8.) 26 /// 27 1 Plaintiffs proceed without assistance of counsel in this action. Thus, this case was referred to 28 the undersigned per Local Rule 302(c)(21). See 28 U.S.C. § 636; Fed. R. Civ. P. 72. 1 On March 16, 2022, plaintiffs filed a motion to lift the stay. (ECF No. 11.) However, as 2 the filing was not a joint statement, and as public records indicated plaintiff Bird’s criminal case 3 was still ongoing, the court denied the motion and left the stay in place. On March 28, plaintiff 4 McGee filed a “motion to remove plaintiff Donald M. Bird” from the case, implicitly arguing that 5 without plaintiff Bird, there would be no rationale for the stay. She also reasserts her request for 6 a jury trial. She then states if the court declines to grant the amendment, she will file the case 7 again under her own name. (ECF No. 13.) 8 Construing plaintiff McGee’s filing as a motion to amend under Federal Rule of Civil 9 Procedure 15(a)(2), the motion is denied without prejudice. The court is aware—from both the 10 complaint and public documents—that any claims related to the search and seizure are integrally 11 related to plaintiff Bird’s criminal proceedings in state court. Therefore, even if plaintiff Bird 12 were omitted from an amended complaint, the rationale for staying the case would be the same. 13 Plaintiffs’ jury request is noted, and this stay does not impinge that right. Should plaintiff Bird 14 prevail in his criminal case, the stay will be lifted and the case will proceed as normal. At that 15 time, plaintiffs’ may re-petition the court to amend the complaint under Rule 15(a)(2), should 16 they choose to do so. 17 In the court’s previous order (ECF No. 11), the court warned plaintiffs that further failure 18 to abide by the court’s orders may result in sanctions being imposed against them, which may 19 include dismissal of the case. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) 20 (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for 21 failure to comply with any order of the court.”); see also Local Rule 183(a) (“Any individual 22 representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal 23 Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these 24 Rules apply to individuals appearing in propria persona. Failure to comply therewith may be 25 ground for dismissal, judgment by default, or any other sanction appropriate under these Rules.”); 26 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of 27 procedure that govern other litigants.”). Here, plaintiff McGee stated that if plaintiff Bird was not 28 removed from this case (implicitly arguing the stay should also be lifted), she would refile the 1 | case. Such gamesmanship will not be tolerated. If plaintiff McGee refiles under her own name, 2 || her new case will be related to this case, will be immediately stayed, and the court will 3 || recommend dismissal with prejudice of both cases for failing to follow the court’s orders. 4 Moving forward, the only filing the court will entertain is a joint statement—at the 5 || conclusion of plaintiff Bird’s criminal case—indicating the outcome of that case along with the 6 || parties’ arguments as to how to proceed with this case. This is plaintiffs’ final warning. 7 ORDER 8 Accordingly, it is HEREBY ORDERED that plaintiff's motion to amend (ECF No. 13) is 9 || DENIED without prejudice. 10 | Dated: March 31, 2022 Aectl Aharon 12 KENDALL J.NE megee.2216 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28