Aljindi v. Northcentral University

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 11/15/2017: DENYING 13 Motion to Disqualify United States Magistrate Judge, 14 Motion to Appoint Counsel, 16 Motion for Permission for Electronic Case Filing. Service of the 18 First Amend ed Complaint is appropriate for defendant Northcentral University. DIRECTING the clerk to issue process. Plaintiff shall supply the U.S. Marshal, within 30 days from the date this order is filed, with all information needed by the U.S. Marshal to eff ectuate service of process, and shall, within 10 days thereafter, file a statement with the court that such documents have been submitted to the U.S. Marshal. The United States Marshal is DIRECTED to serve all process without prepayment of costs not later than sixty (90) days from the date of this order. (Washington, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AHMAD J. ALJINDI, 12 Plaintiff, 13 14 No. 2:17-cv-01990-JAM-KJN PS v. ORDER NORTHCENTRAL UNIVERSITY, 15 Defendant. 16 17 Plaintiff Ahmad J. Aljindi, who proceeds in this action without counsel, filed his first 18 19 amended complaint on November 9, 2017. (ECF No. 18.) Simultaneously, plaintiff filed a 20 motion to disqualify the magistrate judge (ECF No. 13), a motion to appoint counsel (ECF No. 21 14), and a motion to utilize the electronic filing system (ECF No. 16). In his first amended complaint, plaintiff, a Middle Eastern Muslim whose nation of origin 22 23 is Syria, alleges that he was discriminated and retaliated against by defendant Northcentral 24 University, based on his race, religion, and national origin, in violation of Title VII of the Civil 25 Rights Act of 1964, as amended. (See generally ECF No. 18.) Plaintiff also alleges that 26 defendant bribed officials at the Equal Employment Opportunity Commission, in an effort to 27 stymie plaintiff’s complaints against defendant with the Commission. (Id.) 28 //// 1 1 Based on the limited record before the court, the court cannot conclude that plaintiff’s 2 action is frivolous, that the first amended complaint fails to state a claim upon which relief can be 3 granted, or that plaintiff seeks monetary relief from an immune defendant. The court reserves 4 decision as to plaintiff’s claims until the record is sufficiently developed, and this order does not 5 preclude defendant from challenging plaintiff’s first amended complaint through a timely motion 6 pursuant to Federal Rule of Civil Procedure 12 or other appropriate method of challenging 7 plaintiff’s pleading. Accordingly, the court orders service of the first amended complaint on 8 defendant. 9 Prior to filing the first amended complaint and these three motions on November 9, 2017, 10 plaintiff previously filed motions to appoint counsel (ECF No. 7), and to utilize the electronic 11 filing system (ECF No. 3), both of which were denied. (ECF Nos. 4, 11.) The court construes 12 plaintiff’s duplicative November 9, 2017 motions to appoint counsel and to utilize the electronic 13 filing system, as motions for reconsideration. However, there have been no changes in fact or law 14 to justify appointing counsel or granting plaintiff permission to use the electronic filing system. 15 As such, plaintiff’s November 9, 2017 motions to appoint counsel (ECF No. 14) and to utilize the 16 electronic filing system (ECF No 16) are denied for the same reasons set forth in the court’s 17 previous orders. (See ECF Nos. 4, 11.) 18 As to plaintiff’s motion to disqualify the magistrate judge, there is no evidence to support 19 plaintiff’s conclusory assertion that the undersigned “has shown acute prejudice against the 20 Plaintiff and blatant partiality for the Defendant.” (ECF No. 13 at 1.) Aside from reaching 21 conclusions with which plaintiff disagrees, plaintiff has failed to demonstrate how the 22 undersigned has shown prejudice against him. While plaintiff is not pleased with the court’s prior 23 orders, they have been based upon sound application of the appropriate legal standards. (See ECF 24 Nos. 4, 11.) 25 Moreover, this case proceeds before the undersigned pursuant to federal statute and the 26 local rules of the Eastern District of California. 28 U.S.C. § 636(b)(1) grants district judges the 27 authority to designate magistrate judges to hear a wide variety of matters. Pursuant to 28 U.S.C. 28 § 636(b)(1)(B), the local rules of this court provide that “[i]n Sacramento, all [civil] actions in 2 1 which all the plaintiffs or defendants are proceeding in propria persona, including dispositive and 2 non-dispositive motions and matters” shall be assigned to a magistrate judge. E.D. Cal. L.R. 3 302(c)(21). 4 The only plaintiff in this matter is proceeding without an attorney, in propria persona. 5 Thus, the rules of this court determine that all motions in this matter will be considered initially 6 by a magistrate judge. See E.D. Cal. L.R. 302(c)(21). At the same time, since plaintiff has 7 declined to proceed before a magistrate judge (ECF No. 12), United States District Judge John A. 8 Mendez retains jurisdiction over this case. As a result, Judge Mendez will decide any dispositive 9 motion, after a magistrate judge makes non-binding findings and recommendations. See 28 10 U.S.C. § 636(b)(1)(B). 11 Therefore, there is no legal basis for plaintiff’s motion to disqualify the undersigned 12 magistrate judge from this matter. Additionally, because plaintiff’s current motions are not 13 dispositive, the undersigned may decide these issues by order. 14 Finally, plaintiff is advised that any motion he files with the court must comply with 15 Federal Rule of Civil Procedure 11(b). The court will summarily dismiss any future motion that 16 is duplicative to a motion the court has already considered and denied, unless the new motion is 17 based upon changed factual or legal circumstances that justify reconsideration. Furthermore, the 18 court may order monetary sanctions against any party who files a frivolous or duplicative motion. 19 For the foregoing reasons, IT IS HEREBY ORDERED that: 20 1. Plaintiff’s motions to disqualify the magistrate judge (ECF No. 13), to appoint 21 counsel (ECF No. 14), and for permission to utilize the electronic filing system (ECF No. 16) are 22 DENIED. 23 2. 24 25 26 27 28 Service of the first amended complaint (ECF No. 18) is appropriate for defendant Northcentral University. 4. The Clerk of Court is directed to issue forthwith all process pursuant to Federal Rule of Civil Procedure 4. 5. The Clerk of Court shall send plaintiff one USM-285 form, one summons, this court’s scheduling order, and the forms providing notice of the magistrate judge’s availability to 3 1 2 exercise jurisdiction for all purposes. 6. Plaintiff is advised that to effectuate service, the U.S. Marshal will require: 3 a. One completed summons; 4 b. One completed USM-285 form for each defendant to be served; 5 c. A copy of the first amended complaint for each defendant to be served, 6 with an extra copy for the U.S. Marshal; and 7 8 9 d. A copy of this court’s scheduling order and related documents for each defendant to be served. 7. Plaintiff shall supply the U.S. Marshal, within 30 days from the date this order is 10 filed, with all information needed by the U.S. Marshal to effectuate service of process, and shall, 11 within 10 days thereafter, file a statement with the court that such documents have been submitted 12 to the U.S. Marshal. 13 8. The U.S. Marshal shall serve process, with copies of this court’s scheduling order 14 and related documents, within 90 days of receipt of the required information from plaintiff, 15 without prepayment of costs. 16 9. If a defendant waives service, the defendant is required to return the signed waiver 17 to the U.S. Marshal. The filing of an answer or a responsive motion does not relieve a defendant 18 of this requirement, and the failure to return the signed waiver may subject a defendant to an 19 order to pay the costs of service by the U.S. Marshal. 20 10. The Clerk of Court shall serve a copy of this order on the U.S. Marshal. 21 11. Failure to comply with this order may result in any appropriate sanctions, 22 including monetary sanctions and/or dismissal of the action pursuant to Federal Rule of Civil 23 Procedure 41(b). 24 25 IT IS SO ORDERED. Dated: November 15, 2017 26 27 14/17-1990.aljindi.service of fac.etc 28 4

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