Tilei v. McGuinness et al

Filing 67

ORDER Requiring Defendants to SHOW CAUSE why their Motion to Dismiss for Failure to State a Claim Should not be Stricken from the Record signed by Magistrate Judge Sheila K. Oberto on 04/24/2017. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 PUNAOFO TSUGITO TILEI, Plaintiff, 11 v. 12 13 McGUINNESS, et al., Defendants. 14 Case No. 1:10-cv-00069-LJO-SKO (PC) ORDER REQUIRING DEFENDANTS TO SHOW CAUSE WHY THEIR MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM SHOULD NOT BE STRICKEN FROM THE RECORD (Doc. 66) SEVEN (7) DAY DEADLINE 15 16 Plaintiff, Punaofo Tsugito Tilei, is a state prison inmate proceeding in forma pauperis in 17 this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 13, 2010. 18 (Doc. 1.) 19 Following the proceedings in this Court, Plaintiff filed an appeal with the Ninth Circuit. 20 On appeal, the Ninth Circuit found that the Complaint states a cognizable claim for relief under 21 22 23 24 25 section 1983 against Defendants C.M.O. William J. McGuinness M.D., Jeremy Wang M.D., H. Hasrdsri M.D., Joseph Obriza M.D., Julian Kim M.D., Jeffrey Neubarth M.D., N. Loadholt, FNP, and P. Rouch, FNP for deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment.1 (Docs. 43, 44.) // 26 27 28 1 Though the Ninth Circuit found that Plaintiff stated a cognizable claim against Dr. Hasrdsri, Plaintiff voluntarily dismissed Dr. Hasrdsri from the action. (Docs. 64, 65.) The Ninth Circuit found that Plaintiff did not state a claim against Lisa Salinas (Doc. 43, p. 3) and she was dismissed from the action (Doc. 46). 1 The Ninth Circuit previously ruled (Doc. 43) that Plaintiff’s allegations are sufficient to 1 2 state a claim upon which relief may be granted against the named defendants for violation of the 3 Eighth Amendment. 28 U.S.C. § 1915A; Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 4 Without acknowledging that binding decision, Defendants now seek dismissal of Plaintiff’s 5 Eighth Amendment claims against Defendants Obaiza and Wang, asserting that Plaintiff has not 6 stated a cognizable claim against them. (Doc. 66.) 7 The rule of mandate prohibits this Court from varying or examining the mandate from the 8 Ninth Circuit as to whether Plaintiff’s claims are cognizable. United States v. Cote, 51 F.3d 178, 9 181 (9th Cir.1995); Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). “Violation 10 of the rule of mandate is a jurisdictional error.” Hall, 697 F.3d at 1067 (citing United States v. 11 Thrasher, 483 F.3d 977, 982 (9th Cir. 2007). Defendants’ counsel, as an officer of the court, has 12 a duty of good faith and candor to the court, and sanctions may be imposed for filing frivolous 13 motions which serve only to unnecessarily multiply the proceedings. Pacific Harbor Capital, 14 Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1119 (9th Cir. 2000). Accordingly, it is HEREBY ORDERED that within seven (7) days from the date of 15 16 17 service of this order, Defendants shall show cause2 why their motion to dismiss should not be summarily stricken; alternatively Defendants may withdraw their motion to dismiss. 18 19 20 IT IS SO ORDERED. Dated: April 24, 2017 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2 Depending upon the response to this order, the Court may issue an order to show cause why sanctions should not be imposed. 2

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