(PC) Bland v. Moffett ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA BLAND, No. 1:19-cv-01750-JLT-SKO (PC) 12 Plaintiff, ORDER SETTING ASIDE PLAINTIFF’S 13 v. OBJECTIONS OF MAY 19, 2022, AND DENYING PLAINTIFF’S NOTICE DATED 14 D. MOFFETT, et al., JULY 8, 2022 15 Defendants. (Docs. 62 & 64) 16 17 Plaintiff Joshua Bland is a state prisoner proceeding pro se and in forma pauperis in this 18 civil rights action under 42 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 Defendants Jaime and Stark filed a Motion for Summary Judgment on August 27, 2021, 21 asserting Plaintiff had failed to exhaust his administrative remedies prior to filing this action. 22 (Doc. 41.) Plaintiff filed an opposition (Doc. 44) and Defendants filed a reply (Doc. 45). The 23 summary judgment motion remains pending resolution and will be decided in due course. 24 On May 19, 2022, Plaintiff filed a document titled “Objections to Defendants’ Continuous 25 Meritless Pleadings and Motions, Under Necessity; Inter Alia; Request for Judicial Notice; and 26 Prayer to Excuse Late Filing of Documents.” (Doc. 62.) Defendants filed an opposition to 27 Plaintiff’s “Objections” on that same date. (Doc. 63.) 1 On July 8, 2022, Plaintiff filed a document titled “Notice to the Court Under Necessity; 2 Motion for Reconsideration.” (Doc. 64.) 3 II. DISCUSSION 4 A. Plaintiff’s Filing of May 19, 2022 (Doc. 62) 5 In his “Objections to Defendants’ Continuous Meritless Pleadings and Motions,” Plaintiff 6 “OBJECTS to all of the Defendants’ continuous meritless pleadings and motions, under 7 necessity” (Doc. 62 at 1), contending Defendants “cannot, won’t produce any evidence on how 8 their institution (KVSP) has a history of willfully turning a blind eye and/or making inmate’s 9 grievances ‘mysteriously disappear’ to cover their co-worker’s misconduct …” (id.). Plaintiff 10 then references Defendants’ points and authorities in support of the motion for summary 11 judgment and contends he submitted “several appeals in concerns with the January 26, 2016 12 attack, and did so against the Defendants, including against the actions of Defendants Jaime and 13 Stark; the appeals coordinator has free will to pick and choose as to what appeals get processed 14 and what appeals do not.” (Id.) 15 Defendants have filed an “Objection to Plaintiff’s Objections to Defendants’ Meritless 16 Pleadings and Motions.” (Doc. 63.) Citing Local Rule 230(m), Defendants contend Plaintiff has 17 “previously opposed” the summary judgment motion, they “did not submit any new evidence” in 18 their reply to Plaintiff’s opposition, and Plaintiff has not obtained “permission to file any 19 supplemental material.” (Id. at 2.) Defendants further contend Plaintiff’s Objections “do not cite 20 any judicial opinions issued after the date Plaintiff filed” his opposition. (Id.) 21 Local Rule 230(l), entitled “Motions in Prisoner Actions,” does not contemplate any filing 22 beyond the motion, an opposition, and a reply. Local Rule 230(m) provides as follows: 23 Supplementary Material. After a reply is filed, no additional memoranda, papers, or other materials may be filed without prior 24 Court approval except: 25 (1) Objection to Reply Evidence. If new evidence has been submitted with the reply brief, the opposing party may 26 file and serve, no later than seven (7) days after the reply is filed, an Objection to Reply Evidence stating its 27 objections to the new evidence. The Objection to Reply Evidence may not include further argument on the 1 (2) Notice of Supplemental Authority. Any party may file a notice of supplemental authority to bring the Court’s 2 attention to a relevant judicial opinion issued after the date that party’s opposition or reply was filed. The notice 3 of supplemental authority may contain a citation to the new authority but may not contain additional argument 4 on the motion. 5 Local Rule 230(m). 6 As set forth above, Plaintiff filed his opposition to Defendants’ summary judgment 7 motion alleging failure to exhaust administrative remedies on September 9, 2021. (See Doc. 44.) 8 Defendants filed a reply on September 16, 2021. (Doc. 45.) A review of Defendants’ reply reveals 9 that it does not submit any new evidence. Therefore, Plaintiff is not entitled to any supplemental 10 filing without prior court approval. Local Rule 230(m)(1). The undersigned also notes that had 11 Defendants’ reply included new evidence, Plaintiff’s Objections are well beyond the required 7- 12 day deadline. In fact, 245 days1 have elapsed between Defendants’ reply and Plaintiff’s 13 Objections. Further, Plaintiff’s Objections do not cite to any new legal authority in support of his 14 opposition to Defendants’ summary judgment motion. As noted above, Plaintiff is not entitled to 15 any supplemental filing without prior approval. Local Rule 230(m)(2). Plaintiff is simply not 16 entitled to further or additional argument concerning Defendants’ summary judgment motion nor 17 will the Court entertain any supplemental pleadings. 18 Plaintiff next requests that the Court take “judicial notice of its own record in the case of 19 Armstrong v. Newsom, and see the misconduct history of CDCR and KVSP against ADA/ARP 20 inmates by the State actors, officers, and employees, and the reason why institutions, e.g., KVSP, 21 etc., officers must wear body cameras and cameras are not stritigically [sic] placed throughout the 22 institutions.” (Doc. 62 at 3.) He claims “[t]his is what evidence Pltf. Has to exhibit the ‘Proof’ 23 requirement to show that his appeals and grievances were indeed submitted, but were veted [sic] 24 out by the very actors who were to process them.” (Id.) 25 Pursuant to Federal Rule of Evidence 201, a court may properly take judicial notice of 26 matters in the public record. See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may 27 take judicial notice of a public record not for the truth of the facts recited in the document, but for 1 the existence of the matters therein that cannot reasonably be questioned. See Fed. R. Evid. 201. 2 A court “may take notice of proceedings in other courts, both within and without the federal 3 judicial system, if those proceedings have a direct relation to matters at issue.” U.S. ex rel. 4 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citation 5 omitted). If a court takes judicial notice of a document, it must specify what facts it judicially 6 noticed from the document. Id. 7 Plaintiff’s reference to “Armstrong v. Newsom” is too vague. He provides no case number 8 or other identifying information. Even assuming Plaintiff is referring to a matter entitled 9 Armstrong v. Newsom that was filed in the United States District Court for the Northern District 10 of California, case number 4:94-cv-02307-CW, the Court will take judicial notice of the 11 Armstrong matter only to demonstrate the action was filed, not for the truth of facts recited in that 12 action. Moreover, Plaintiff has failed to identify any document or filing in that action and simply 13 refers to “the misconduct history.” The Court will not review the docket of another action to 14 clarify or identify Plaintiff’s vague reference. For those reasons, the Court does not take judicial 15 notice of any facts in the Armstrong action. 16 In sum, for the foregoing reasons, Plaintiff’s Objections filed May 19, 2022 (Doc. 62) will 17 be set aside. 18 B. Plaintiff’s Filing of July 8, 2022 (Doc. 64) 19 In his “Notice to the Court Under Necessity; Motion for Reconsideration” (Doc. 64), 20 Plaintiff asks the Court to “PLEASE TAKE NOTICE Pltf. has done all it is that the court has 21 asked of Pltf., and still Objects the court’s F & R, under necessity, for the facts are as follows: 22 ….” (Id. at 1.) Plaintiff thereafter contends “this court cannot dismiss this action based on so- 23 called failure to exhaust administrative remedies” (id.), that Plaintiff “is not a party to the State of 24 California Constitution nor a party of the federal Constitution, the States are the parties to them” 25 (id.), that “courts of the United States are bound to recognize and enforce the common law” (id.), 26 and that “defendants in the case sub judice, had all sworn an oath to protect [Plaintiff’s] life and 27 [his] property …, in which they had failed to protect me as this court has recognized” (id.). 1 deny Pltf. his civil rights under the law.” (Id.) Plaintiff states: 2 prior to this Court making its Findings and Recommendations and the adoptions thereof, I notice this Court that said court is to protect 3 private rights, to deny or dismiss this action would be to deny Plft’s private rights, his civil and constitutionally guaranteed, and secured 4 rights, is such an act or acts sustainable by law? The only way to take my rights is by due process of law, and in accordance with the 5 Constitution, which the court is a sworn party of. 6 (Id. at 2.) Plaintiff concludes with a “notice [to] this Court that the ‘Constitution extends equal 7 protection of the law to people, not to interests” and that “the court’s overriding concern ought to 8 be ‘the incessant command of the court’s conscience that justice be done in light of all the facts.’ 9 [Citation omitted.]” (Id.) 10 The Court notes that no findings and recommendations have been issued concerning 11 Defendants’ summary judgment motion for a failure to exhaust administrative remedies. As noted 12 above, the motion remains pending on this Court’s busy docket and will be considered in due 13 course. 14 Next, while Plaintiff partially titled his filing a “Motion for Reconsideration,” there is 15 nothing to reconsider. Neither an order nor any findings and recommendations have issued from 16 either a district judge or the assigned magistrate judge concerning Defendants’ motion for 17 summary judgment filed on August 27, 2021. Therefore, any request for reconsideration is 18 premature. See Local Rules 230(j) & 303(c). 19 Plaintiff’s Notice is a further attempt to file supplemental materials concerning 20 Defendants’ pending motion for summary judgment for failure to exhaust. For the reasons 21 explained above (see subh. (A), ante), Plaintiff’s notice will be denied. See Local Rule 230(m). 22 In sum, Plaintiff is entitled to no relief concerning his “Notice” filed July 8, 2022. 23 // 24 // 25 // 26 // 27 // 1 III. CONCLUSION AND ORDER 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s “Objections to Defendants’ Continuous Meritless Pleadings and Motions, 4 Under Necessity; Inter Alia; Request for Judicial Notice; and Prayer to Excuse Late 5 Filing of Documents” (Doc. 62) are SET ASIDE, and 6 2. Plaintiff’s “Notice to the Court Under Necessity; Motion for Reconsideration” (Doc. 7 64) is DENIED. 8 IT IS SO ORDERED. 9 10 Dated: July 20, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27