Oliver v. Shelton et al

Filing 75

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 1/4/2022 RECOMMENDING that Plaintiff's failure to file an opposition to the pending Motion to Dismiss be construed as non-opposition to the relief requested; The motion to dismiss 70 , be granted; Shelton and Hatley be dismissed with prejudice as defendants to this action; The action proceed against Defendant Mell only; The fourth Amended Complaint, 69 , be dismissed with leave to amend; and Plaintiff be directed to file a fifth amended complaint against Defendant Mell only. These Findings and Recommendations are submitted to Chief District Judge Kimberly J. Mueller. Objections to these F&Rs due within 14 days.(Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARON MICHAEL OLIVER,

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Plaintiff,

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No. 2:18-CV-1809-KJM-DMC

v.

FINDINGS AND RECOMMENDATIONS

DUANE SHELTON, et al.,

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Defendants.

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Plaintiff, who is proceeding pro se, brings this civil action. Pending before the

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Court is the unopposed motion to dismiss, ECF No. 70, filed by Defendants Shelton and Hatley.

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Defendant Mel has filed an answer to the operative fourth amended complaint and does not join

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in the motion to dismiss.

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I. PROCEDURAL HISTORY

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The procedural history of this case is somewhat tortured and bears noting.

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Plaintiff initiated this action with a pro se complaint against Shelton, Hatley, and Mell1 filed on

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June 25, 2018. See ECF No. 1. On July 12, 2018, the Court granted Plaintiff’s motion for leave

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to proceed in forma pauperis and found the complaint appropriate for service on Defendants

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Erroneously named as “Mel.”
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Shelton, Hatley, and Mell. See ECF No. 3. Defendant Hatley filed a waiver of service on August

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16, 2018. See ECF No. 15. Defendant Mel filed a waiver of service on September 7, 2018. See

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ECF No. 17. Though the docket did not reflect service of process or waiver thereof on Defendant

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Shelton at the time, on September 25, 2018, Defendants Shelton and Hatley, through the Attorney

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General of California, requested an extension of time to file a response to Plaintiff’s complaint.

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See ECF No. 18. Defendant Mell, through private counsel, filed an answer to the original

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complaint on October 2, 2018. See ECF No. 19. On the same day, the Court granted Defendants

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Shelton and Hatley an additional 30 days to respond to the complaint. See ECF No. 21.

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On October 30, 2018, Defendants Shelton and Hatley filed a motion to dismiss the

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original complaint. See ECF No. 23. Plaintiff did not file an opposition and, on January 3, 2019,

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the Court issued an order submitting the motion to dismiss on the papers without oral argument.

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See ECF No. 26. On February 11, 2019, the Court issued findings and recommendations that the

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motion to dismiss be granted, that Plaintiff’s original complaint be dismissed for failure to

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comply with Federal Rule of Civil Procedure 8(a)(3), and that Plaintiff be directed to file a first

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amended complaint. See ECF No. 30. The findings and recommendations were adopted in full

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by the District Judge on April 13, 2019, and Plaintiff was directed to file a first amended

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complaint within 30 days. See ECF No. 31.

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After having been granted an extension of time, Plaintiff timely filed his first

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amended complaint on June 3, 2019. See ECF No. 34. On June 17, 2019, Plaintiff filed a second

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pleading captioned “First Amended Complaint.” See ECF No. 36. On June 18, 2019, Defendants

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Shelton and Hatley filed a motion to dismiss the first amended complaint filed on June 3, 2019.

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See ECF No. 38. Defendant Mell filed his answer to the June 3, 2019, first amended complaint

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on the same day. See ECF No. 37.

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Prior to the scheduled hearing on the motion to dismiss Plaintiff’s June 3, 2019,

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first amended complaint, Plaintiff filed a pleading captioned “First/Second Amended Complaint”

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on July 8, 2019. See ECF No. 40. On August 8, 2019, the Court issued an order clarifying the

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status of the pleadings and determining that this action properly proceeds on Plaintiff’s amended

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complaint filed on June 17, 2019. See ECF No. 41. The then-pending motion to dismiss and
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Defendant Mell’s answer filed on June 18, 2019 – both addressing the June 3, 2019, pleading

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which was superseded by the June 17, 2019, pleading – were disregarded. See id. The Court also

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found that Plaintiff’s July 8, 2019, pleading had been improperly filed. See id. Defendants were

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directed to file a response to Plaintiff’s June 17, 2019, pleading within 30 days. See id. The

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operative pleading – Plaintiff’s June 17, 2019, filing – is referred to as Plaintiff’s second amended

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complaint. See id.

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On August 19, 2019, Plaintiff filed a motion for leave to amend. See ECF No. 42.

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On August 28, 2019 – prior to any ruling on Plaintiff’s August 19, 2019, motion – Defendants

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Shelton and Hatley filed a motion to dismiss Plaintiff’s second amended complaint. See ECF No.

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43. On August 30, 2019, the Court denied Plaintiff’s August 19, 2019, motion for leave to amend

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and granted Defendant Mell additional time to respond to the operative second amended

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complaint. See ECF No. 44.

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On September 9, 2019, Plaintiff again moved for leave to amend. See ECF No.

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45. On September 27, 2019 -- prior to a ruling on the renewed motion for leave to amend –

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Defendant Mell filed an answer to the second amended complaint. See ECF No. 46. On

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November 11, 2019, the Court vacated the hearing scheduled on the motion to dismiss the second

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amended complaint and took the matter under submitted without oral argument. See ECF No. 47.

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On December 24, 2019 – again prior to any ruling on the then-pending motions to

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dismiss and amend – Plaintiff filed an appeal from Court’s November 11, 2019, order taking the

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matter under submission. See ECF No. 48. The Ninth Circuit Court of Appeals dismissed the

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appeal for lack of jurisdiction on January 28, 2020. See ECF No. 52. The appellate court’s

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mandate was docketed in this Court on February 19, 2020. See ECF No. 53.

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On May 7, 2020, the Court issued an order denying Plaintiff’s September 9, 2019,

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motion for leave to amend. See ECF No. 55. On the same day, the Court issued findings and

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recommendations that the motion to dismiss the second amended complaint filed by Defendants

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Shelton and Hatley be granted and that Plaintiff be granted an opportunity to file a third amended

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complaint. See ECF No. 56. The District Judge adopted the findings and recommendations in

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full on January 21, 2021, and directed Plaintiff to file a third amended complaint within 30 days.
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See ECF No. 58.
On February 1, 2021, Plaintiff filed his third amended complaint naming “David

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Melborue” as the sole defendant. See ECF No. 59. On February 16, 2021, Defendant Mell filed

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an answer to the third amended complaint, acknowledging that he was erroneously named as

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“David Melboru.” See ECF No. 60. On February 19, 2021, Defendants Shelton and Hatley filed

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a motion to be dismissed from the action because Plaintiff no longer named them in the now-

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operative third amended complaint filed on February 1, 2021. See ECF No. 61. On February 24,

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2021, the Court directed the parties to meet and confer and submit a joint statement for purposes

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of scheduling. See ECF No. 62. On February 26, 2021, the Court issued an order directing the

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Clerk of the Court to terminate Shelton and Hatley as defendants to this action because they were

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not named in the third amended complaint. See ECF No. 63. The Court also denied as

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unnecessary the then-pending motion to dismiss filed by Defendants Shelton and Hatley. See id.

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Defendant Mell submitted a separate scheduling report on March 26, 2021. See

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ECF No. 64. On March 29, 2021, Plaintiff sought a 60-day extension of time to submit his

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portion of the required scheduling report. See ECF No. 65. On April 15, 2021, the Court granted

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Plaintiff’s motion for an extension of time in part and directed Plaintiff to submit his portion of

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the scheduling report within 30 days. See ECF No. 66.

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Rather than filing his scheduling report, Plaintiff filed another motion for leave to

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amend on April 30, 2021. See ECF No. 67. In his motion, Plaintiff stated that he inadvertently

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failed to name Shelton and Hatley in the third amended complaint and sought further leave to

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amend to correct the error. See id. No opposition to Plaintiff’s motion was filed and, on August

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25, 2021, the Court granted Plaintiff leave to file a fourth amended complaint within 30 days.

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See ECF No. 68. Plaintiff timely filed a fourth amended complaint against all defendants on

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September 24, 2021. See ECF No. 69. Defendants Shelton and Hatley timely filed the now-

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pending motion to dismiss Plaintiff’s fourth amended complaint on October 1, 2021. See ECF

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No. 70. Defendant Mell filed his answer to the fourth amended complaint on October 12, 2021.

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See ECF No. 71. After Plaintiff again failed to file any opposition to the motion to dismiss, the

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Court took the matter under submission without oral argument on October 28, 2021. See ECF
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No. 72. To date, Plaintiff has not filed any scheduling report.

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II. PLAINTIFF’S ALLEGATIONS

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This action currently proceeds against defendants Mell2, Shelton, and Hatley on

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Plaintiff’s fourth amended complaint. See ECF No. 69. Relative to the moving defendants,

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Plaintiff alleges that Defendant Shelton is a Parole Agent in Butte County, California, and that

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Defendant Hatley is a Supervisor of the Chico Parole Unit, also in Butte County, California. See

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id. at 2-3. Plaintiff alleges three claims for relief: (1) Count 1 for violation of the Americans with

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Disabilities Act; (2) Count 2 for denial of medical care; and (3) Count 3 for denial of Kosher

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meals. See id. at 5, 6, 9. In Count 1, Plaintiff asserts claims against Defendants Shelton and

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Hatley. In Count 2, Plaintiff asserts a claim against Defendant Mell. No defendants are

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mentioned in Count 3. Plaintiff’s allegations on Count 2 and Count 3 are, therefore, not relevant

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to the pending motion filed by Defendants Shelton and Hatley.

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Regarding Count 1, Plaintiff alleges the following supporting facts:

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June 27, 2017, I was asked to go down there 1370 Ridgewood Dr.
STE #14 at 8am (Chico Parole Unit). They did not provide State Certified
Sign language interpreter. I brought my power of attorney with me and
she was denied access to the back with me. I was interrogated and
threatened by Duane Shelton and Trevor Hatley (SUPERVISOR). I was
then arrested by four parole officers who cuffed my hands behind my back
(didn’t know why I was being arrested) no sign language interpreter was
provide upon arrest. I was informed later by my fiancé, who way and
video recorded my arrest outside, that my parole officer Duane Shelton
read my Miranda Rights verbally while I was face down on the ground
and hands cuffed back.
No written copy was provided and no sign language interpreter
was provided so I never knew the Miranda Rights were ever read to me
because I never heard it. After I was taken to Butte County Jail
(6/27/2017), I was denied my right to use TDD phone. I had to wait over
a week to call my fiancé and then waited 2 days to honor my request to
sue the TDD phone after 1st time.

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Id. at 5-6.

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///

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///

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Plaintiff now names this defendant as “David Melboure.”
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As with Plaintiff’s original complaint, the fourth amended complaint contains no

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request for relief as required by Federal Rule of Civil Procedure 8(a)(3). See generally ECF No.

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69.

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III. DISCUSSION
In their unopposed motion to dismiss Plaintiff’s fourth amended complaint,

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Defendants Shelton and Hatley argue: (1) the fourth amended complaint violated Rule 8(a)(3)

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because it does not contain a demand for relief; and (2) Plaintiff’s ADA claims fail. The Court

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notes that these defects were the subject of the prior motions to dismiss the first and second

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amended complaints, both of which were granted for the reasons argued.
Under Eastern District of California Local Rule 230(c) (effective February 1,

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2019), the failure to file a timely opposition to a motion may be construed as non-opposition to

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the relief requested. Given the procedural history of this case, the Court exercises its discretion

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under the local rules to construe Plaintiff’s failure to file any opposition whatsoever to the

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pending motion to dismiss as non-opposition to the motion. In doing so, the Court notes two

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compelling factors. First, Plaintiff has consistently failed to oppose any of the various motions to

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dismiss filed in this case, upon which the Court has expended considerable time. Second, the

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defects Defendants Shelton and Hatley current argue are the same defects from which the original

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complaint suffered. These defects were the basis of the District Judge’s prior orders that the

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original complaint and first amended complaint both be dismissed. To re-address those issues

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again here, in light of allegations in the fourth amended complaint which are substantially

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unchanged from previous amendments, would be a waste of judicial resources.

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Defendants Shelton and Hatley, who have been brought in and out of the action

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over the years, should finally be dismissed with prejudice. Though the Rule 8(c)(3) defect in the

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fourth amended complaint would also apply to Plaintiff’s claims against Defendant Mell,

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Defendant Mell has answered and appears eager to defend on the merits of Count 2. The Court

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thus recommends dismissal of the fourth amended complaint with leave to amend to include a

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demand for relief. The action should proceed on amendment as against Defendant Mell only.
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IV. CONCLUSION

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Based on the foregoing, the undersigned recommends that:

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Plaintiff’s failure to file an opposition to the pending motion to dismiss be

construed as non-opposition to the relief requested;

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The motion to dismiss filed by Defendants Shelton and Hatley, ECF No.

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Shelton and Hatley be dismissed with prejudice as defendants to this

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The action proceed against Defendant Mell only;

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The fourth amended complaint, ECF No. 69, be dismissed with leave to

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Plaintiff be directed to file a fifth amended complaint against Defendant

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70, be granted;

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action;

amend; and

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Mell only.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written objections

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 4, 2022
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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