Gray v. Johnson et al

Filing 282

ORDER ADOPTING 237 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER DENYING 221 Defendant Rebel's Motion to Dismiss; and ORDER DENYING 247 Defendant Rebel's Motion for Reconsideration signed by District Judge Dale A. Drozd on 10/17/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANA GRAY,

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No. 1:13-cv-01473-DAD-GSA
Plaintiff,

v.
DR. V. ROMERO, et al.,
Defendants.

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(Doc. Nos. 221, 237, 244, 247)

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
MOTION TO DISMISS, DENYING
REQUEST FOR RECONSIDERATION, AND
REFERRING BACK TO THE MAGISTRATE
JUDGE FOR FURTHER PROCEEDINGS

Plaintiff, Dana Gray, is a prisoner proceeding pro se and in forma pauperis with this civil

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rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 7, 2017, the assigned magistrate judge issued findings and recommendations

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recommending that defendant Cyril Rebel’s motion to dismiss, which was filed on June 2, 2017,

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be denied. (Doc. Nos. 221, 237.) The findings and recommendations provided that any

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objections could be filed within fourteen days of their issuance, and any replies could be filed

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within the ten days following. (Doc. No. 237.)

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Defendant Rebel filed a document with the court captioned as a “response” to the findings

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and recommendations on August 11, 2017. (Doc. No. 244.) Defendant Rebel then filed a request

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that the district judge reconsider the findings and recommendations on August 14, 2017. (Doc.
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No. 247.) Of course, parties are not authorized to “respond” to the findings and recommendations

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of the assigned magistrate judge and the undersigned cannot “reconsider” findings and

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recommendations because they are not orders. Nonetheless, the court will treat both filings by

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defendant Rebel’s counsel as timely submitted objections to the findings and recommendations.1

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Plaintiff filed no objections and did not file a reply to defendant Rebel’s objections. The time for

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such filings has now expired.
Defendant Rebel’s objections to these findings and recommendations are based, in large

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part,2 on the claim that this court lacks subject matter jurisdiction. However, the underlying

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motion to dismiss filed by counsel on behalf of defendant Rebel did not seek dismissal under

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Rule 12(b)(1) based upon an alleged lack of jurisdiction, but instead sought dismissal pursuant to

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Rule 41(b) on the grounds that plaintiff has failed to diligently prosecute this case. (Doc. No.

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221.) Further, since the argument counsel for defendant Rebel now raises is being presented for

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the first time in these objections, this court need not consider it. See Brown v. Roe, 279 F.3d 742,

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744–46 (9th Cir. 2002) (holding the district court generally has discretion as to whether or not it

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will consider arguments raised for the first time in objections to a magistrate judge’s findings and

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recommendations); see also Sossa v. Diaz, 729 F.3d 1225, 1230–31 (9th Cir. 2013) (district court

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only abuses its discretion by failing to consider new arguments or evidence advanced by pro se

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The two documents are substantially the same, and will be treated in conjunction.

Defendant Rebel also contends that the court should reject the findings and recommendations
for the following reasons: (1) plaintiff never sought an extension of the deadline set by the
court’s scheduling order for the amendment of pleadings and that deadline has passed; (2)
granting plaintiff further leave to amend would be futile, because the claims against defendant
Rebel are time-barred; (3) the magistrate judge erroneously found that plaintiff had “shown
extreme diligence in responding to court orders”; (4) the magistrate judge’s analysis of three of
the factors set forth in Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) was erroneous; and (5)
the district court has the inherent power to reject the findings and recommendations and simply
dismiss this case. (Doc. No. 244 at 7–12.) In general, these objections are unpersuasive although
it is true that the undersigned need not adopt the findings and recommendations. However, some
of defendant’s objections concern issues decided by the undersigned long ago in this case. For
instance, the magistrate judge previously recommended that plaintiff be granted leave to amend to
plead claims against defendant Rebel that are not time-barred, and the undersigned adopted that
recommendation. (See Doc. No. 158 at 14 (recommending that plaintiff be granted leave to
amend to allege facts showing “that Plaintiff’s claims are not time-barred”), adopted Doc. No.
184.) That order implicitly found leave to amend was not, at that time, futile.
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litigants); Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012) (district court must actually

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exercise discretion). Nonetheless, in the interest of expediting this litigation which has been

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pending for so long before the court, the court will briefly address defendant Rebel’s new

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arguments below.

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As counsel for defendant Rebel notes, the magistrate judge previously found plaintiff was

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not entitled to preliminary injunctive relief in part because the court did not have jurisdiction to

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grant such relief at that time. (Doc. No. 201.) This was because the court was awaiting the filing

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of plaintiff’s Fifth Amended Complaint, which had not yet been filed. (Doc. No. 201.) While the

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court could not grant the preliminary injunctive relief plaintiff sought at that time without an

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operative complaint before it, this does not support defendant’s conclusion that the court lost

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jurisdiction over the case. Article III of the United States Constitution limits the judicial power to

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cases and controversies, not operative complaints. Whatever the status of the current operative

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complaint, it is clear this case remains pending before the court. Moreover, contending that the

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district court loses jurisdiction over a case during the time between the dismissal of a complaint

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with leave to amend and the filing of an amended complaint , as suggested by defendant in the

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pending objections, would lead to absurd results. For instance, if that were the case the court

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being unable to extend the time in which to file the amended complaint for which filing leave had

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been granted. Counsel for defendant Rebel provides no authority suggesting this is the case, and

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the court is aware of none. Indeed, defendant Rebel’s citation to the decision in Sinochem

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International Co. Limited v. Malaysia International Shipping Corp., 549 U.S. 422 (2007) is

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telling. In that case, the court noted “a federal court generally may not rule on the merits of a

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case without first determining that it has jurisdiction over the category of claim in suit (subject-

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matter jurisdiction) and the parties (personal jurisdiction).” Id. at 430–31 (emphasis added). The

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“category of claim” plaintiff has been seeking to allege here includes violations of 42 U.S.C. §

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1983. This provides a cognizable basis for this court to exercise subject matter jurisdiction over

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this dispute. See 28 U.S.C. §§ 1331, 1367; United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

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725 (1966) (noting that if state and federal claims share a common nucleus of operative fact,

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“there is power in federal courts to hear the whole”); Herman Family Revocable Trust v. Teddy
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Bear, 254 F.3d 802, 806 (9th Cir. 2001) (noting courts may continue to exercise jurisdiction over

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state-law claims even when the federal claim which originally gave it jurisdiction has been

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dismissed from the case).

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, the

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undersigned has conducted a de novo review of this case. Having carefully reviewed the entire

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file, including defendant Rebel’s objections, the undersigned concludes the findings and

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recommendations are supported by the record and proper analysis.3

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For these reasons:

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1. The findings and recommendations issued on August 7, 2017 (Doc. No. 237) are adopted

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in full;

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2. Defendant Rebel’s motion to dismiss filed on June 2, 2017 (Doc. No. 221) is denied;

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3. Defendant Rebel’s unauthorized request for reconsideration of the findings and
recommendations issued on August 7, 2017 (Doc. Nos. 244, 247) is denied4; and

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4. This case is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.

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Dated:

October 17, 2017
UNITED STATES DISTRICT JUDGE

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The undersigned is also in concurrence with the magistrate judge’s warning to plaintiff that she
must comply with the court’s orders and conduct this litigation in a reasonable manner to its
conclusion and that her failure to do so, in light of the history of this action, may result in the
imposition of terminating sanctions.
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As noted, those filings have been construed by the court as timely objections to the pending
findings and recommendations.
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