Hanna v. Mariposa County Sheriff Dept. et al
Filing
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ORDER REQUIRING Eugene Action, Esq. to Respond to Response to Order to Show Cause Within Fourteen (14) Days, signed by Magistrate Judge Stanley A. Boone on 11/14/2013. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD CHARLES HANNA,
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Case No. 1:12-cv-00501-AWI-SAB
1:12-cv-01885-AWI-SAB
Plaintiff,
ORDER REQUIRING EUGENE ACTION, ESQ.
TO RESPOND TO RESPONSE TO ORDER TO
SHOW CAUSE
v.
MARIPOSA COUNTY SHERIFF DEPT.
et al.,
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FOURTEEN DAY DEADLINE
Defendants.
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I.
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PROCEDURAL HISTORY
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On April 2, 2012, Plaintiff Richard Charles Hanna, appearing pro se and in forma
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pauperis, filed Hanna v. Mariposa County Sheriff Dept. (“Hanna 1”), No. 1:12-cv-00501-AWI-
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SAB, a civil rights action pursuant to 42 U.S.C. § 1983 in the Eastern District of California. On
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June 25, 2012, the magistrate judge screened the complaint and found service appropriate. On
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August 20, 2012, after Plaintiff failed to return service documents the magistrate judge issued
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findings and recommendations recommending that Hanna 1 be dismissed.
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On this same date, with the assistance of counsel, Plaintiff filed a similar action, Hanna v.
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County of Mariposa (“Hanna 2”), No. 1:12-cv-01885-AWI-SAB, in the Superior Court of
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California, Courty of Mariposa. On November 15, 2012, Defendants removed Hanna 2 from the
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California Superior Court to the Eastern District of California. On November 16, 2012, Plaintiff
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filed objections to the findings and recommendations in Hanna 1. On November 21, 2012,
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Defendants filed a motion to dismiss in Hannah 2.
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Based upon Plaintiff’s objection that he did not receive the service documents in Hanna 1,
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on December 4, 2012, the findings and recommendations were vacated and the Court ordered
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Plaintiff to submit service documents within thirty days. Plaintiff filed a motion to appoint
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counsel and returned the service documents in Hanna 2 on December 12, 2012. The motion to
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appoint counsel was denied on December 18, 2012. On December 21, 2012, Plaintiff filed an
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opposition to the motion to dismiss in Hanna 1.
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On January 4, 2013, Plaintiff filed a motion to continue the defendants’ motion to dismiss
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in Hanna 2. On January 8, 2013, the Court ordered the United States Marshal to effect service of
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process on the defendants in Hanna 1. Defendants filed a reply to the motion to dismiss in Hanna
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2 on February 15, 2013. On February 20, 2013, Plaintiff filed a notice of voluntary dismissal
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with prejudice in Hanna 2. On February 22, 2013, Hanna 2 was dismissed with prejudice. On
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February 25, 2013, Plaintiff filed a motion for appointment of counsel in Hanna 1 which was
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denied on March 5, 2013.
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Plaintiff continued to litigate Hanna 1, filing a motion to order defendants to file a
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responsive pleading on May, 2, 2013; and a motion for service of the complaint on June 19, 2013.
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On July 15, 2013, the summons were returned executed in Hanna 1 and the United States Marshal
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filed a request for reimbursement of costs for effecting personal service on Defendants Mariposa
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County Sheriff Department, and Deputies Boehm, King, Rameriz, and Rumfelt. On July 23, an
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order issued requiring Defendants Mariposa County Sheriff Department, Boehm, King, Rameriz,
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and Rumfelt why the United States Marshal’s request for reimbursement of costs should not be
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granted. Defendants did not respond.
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On August 23, 2013, an order issued requiring Plaintiff to show cause why Hanna 1
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should not be dismissed for failure to prosecute or a motion for default. Plaintiff filed a motion
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for entry of default on September 6, 2013. Default was entered against Defendants Mariposa
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County Sheriff Department, Boehm, King, Rameriz, and Rumfelt on September 10, 2013, and the
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order to show cause was discharged.
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On September 25, 2013, Plaintiff filed a motion for an extension of time to file his motion
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for default judgment. On September 30, 2013, Plaintiff filed a motion for a subpoena duces
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tecum. On October 1, 2013, orders issued granting Plaintiff’s motion for an extension of time and
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requiring Plaintiff to provide additional information regarding the motion for a subpoena duces
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tecum.
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On October 15, 2013, Plaintiff provided the additional information requested and the court
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issued an order on October 16, 2013, granting Plaintiff’s request for a subpoena duces tecum. On
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October 23, 2013, Plaintiff filed a motion for a temporary restraining order against Defendants
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Boehm, King, Rameriz, and Rumfelt. On October 30, 2013, District Judge Anthony Ishii issued
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an order denying Plaintiff’s request for a temporary restraining order and requiring Plaintiff to
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show cause why this action should not be dismissed for failing to file a notice of related cases and
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on the basis of res judicata.
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Plaintiff filed a response to the order to show cause on November 7, 2013. On November
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12, 2013, District Judge Anthony Ishii issued an order relating the two cases and referred this
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matter to the undersigned to determine if the dismissal in Hanna 2 was valid or if should be set
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aside under Rule 60(b) of the Federal Rules of Civil Procedure. Hanna 1, at ECF No. 50.
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II.
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LEGAL STANDARD
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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just
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terms, the court may relieve a party . . .from a final judgment, order, or proceeding for the
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following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
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evidence . . . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released
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or discharged; . . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where
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none of these factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d
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1437, 1442 (9th Cir. 1991).
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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order
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for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy
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to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .”
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exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and
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citation omitted). The moving party “must demonstrate both injury and circumstances beyond his
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control . . . .” Id. (internal quotation marks and citation omitted).
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III.
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DISCUSSION
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In Hannah 2, the plaintiff filed a notice of voluntary dismissal with prejudice. “[U]nder
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Rule 41(a)(1)(I), ‘a plaintiff has an absolute right to voluntarily dismiss his action prior to service
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by the defendant of an answer or a motion for summary judgment.’” Commercial Space Mgmt.
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Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 1999) (quoting Wilson v. City of San
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Jose, 111 F.3d 688, 692 (9th Cir. 1997)). However, once the defendant has filed an answer or
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motion for summary judgment, a plaintiff’s motion for voluntary dismissal is filed under Federal
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Rules of Civil Procedure 41(a)(2). Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). “[A]n
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action may be dismissed at the plaintiff’s request only by court order, on terms that the court
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considers proper.” Fed. R. Civ. P. 41(a)(2). Pursuant to Rule 41(a)(2), there are three separate
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determinations for the court to make: 1) whether to allow dismissal; 2) whether the dismissal
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should be with or without prejudice; and 3) what terms and conditions, if any, should be imposed.
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Williams v. Peralta Community College Dist., 227 F.R.D. 538, 539 (N.D.Cal. 2005). Upon
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receipt of Plaintiff’s notice, the court issued an order dismissing the action with prejudice.
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In his response Plaintiff contends that he asked his public defender, Mr. Action, to file the
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state court action and was not aware that it had been filed until Mr. Action told Plaintiff’s
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girlfriend that Mr. Action was dismissing the case. Plaintiff called Mr. Action who informed him
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that the case was being dismissed because the defendants informed him that the county was
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exempt from actions that occurred within the county jail. Plaintiff contends that he was not aware
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that the state case was proceeding or that it had been dismissed until he spoke with Mr. Action.
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As Judge Ishii stated in the order referring this matter to the undersigned, Plaintiff’s
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response to the order to show cause raises serious concerns regarding whether the dismissal in
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Hanna 2 was valid or should be set aside under Rule 60. Based upon Plaintiff’s response to the
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order to show cause, the Court shall require Plaintiff’s attorney, Mr. Action, to respond to
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Plaintiff’s allegations that Hanna 2 was dismissed without his permission or consent.
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IV.
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CONCLUSION AND ORDER
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Based on the foregoing, IT IS HEREBY ORDERED THAT, within fourteen days from
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the date of service of this order, Plaintiff’s attorney Eugene Action shall respond to the
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allegations set forth in Plaintiff’s response to the order to show cause filed November 7, 2013, in
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Case No. 1:12-cv-00501-AWI-SAB.
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IT IS SO ORDERED.
Dated:
November 14, 2013
UNITED STATES MAGISTRATE JUDGE
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