Collins v. City of Oakland et al

Filing 27

ORDER (1) REGARDING 26 PLAINTIFF'S OPPOSITION TO 11 THE COUNTY OF ALAMEDA'S MOTION TO DISMISS AND (2) CONTINUING THE HEARING ON 11 12 DEFENDANTS' MOTIONS TO DISMISS to September 19, 2013. See order for details. Motion Hearing set for 9/19/2013 09:30 AM in Courtroom C, 15th Floor, San Francisco before Magistrate Judge Laurel Beeler. Signed by Magistrate Judge Laurel Beeler on 8/8/2013. (lblc2, COURT STAFF) (Filed on 8/8/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
CLAYTON COLLINS,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,
v.

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CITY OF OAKLAND, et al.,
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Defendants.
_____________________________________/

No. C 13-01493 LB
ORDER (1) REGARDING
PLAINTIFF’S OPPOSITION TO THE
COUNTY OF ALAMEDA’S MOTION
TO DISMISS AND (2) CONTINUING
THE HEARING ON DEFENDANTS’
MOTIONS TO DISMISS

Plaintiff Clayton Collins, proceeding pro se, filed a complaint on April 3, 2013. Complaint, ECF

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No. 1. He named 2 entities and 3 individuals as defendants, namely, the City of Oakland, the

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County of Alameda, Leo Bazile, Antonio Acosta, and Officer Rick Cocanour of the Alameda

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County Sheriff’s Office. Id. Mr. Collins also filed an application to proceed in forma pauperis. IFP

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Application, ECF No. 3. The court granted Mr. Collins’s IFP Application on April 11, 2013 and

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ordered the United States Marshal to serve the complaint and summonses upon the defendants. IFP

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Order, ECF No. 6. For some reason, the Clerk of the Court did not issue the summonses for each of

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the 5 defendants until June 4, 2013. Issued Summonses, ECF No. 7. The United States Marshal

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acknowledged receiving the issued summons on June 13, 2013, Acknowledgment, ECF No. 8, and

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went about attempting to serve the defendants.

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The City of Oakland and the County of Alameda must have been successfully served in the end

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of June or early July 2013 because on July 15, 2013 each of them filed motions to dismiss Mr.

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Collins’s complaint. County of Alameda Motion, ECF No. 11; City of Oakland Motion, ECF No.

C 13-01493 LB
ORDER

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12. They noticed their motions for hearing on September 5, 2013.
On July 29, 2013. Mr. Collins filed an opposition to the City of Oakland’s motion, Opposition to

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City of Oakland Motion, ECF No. 20, and on August 5, 2013, the City of Oakland filed a reply,

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Reply, ECF No. 22.

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Apparently, Mr. Collins tried to file an opposition to the County of Alameda’s motion, too. On

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August 1, 2013, the court’s chambers received a package that contained two copies of his opposition

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to the County of Alameda’s motion. The copies contains photocopied, rather than original,

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signatures, so the court’s chambers assumed that these copies were the “chambers copies” that

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parties are required to send. As the court understands the situation, Mr. Collins did not file with the

N.D. Cal. Civ. L.R. 5 (setting forth the acceptable methods of filing); see also Representing Yourself

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For the Northern District of California

Clerk of the Court a copy of his opposition that contained an original signature, as required. See

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UNITED STATES DISTRICT COURT

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in Federal Court: A Handbook for Pro Se Litigants (June 2012) at 12-13 (regarding “filing by mail,”

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a pro se litigant is directed to “Mail the sign[ed] original document and a chambers copy to the

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Court for filing”). Thus, to make up for this confusion, the court has directed the Clerk of the Court

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to file Mr. Collins’s opposition to the County of Alameda’s motion as of August 1, 2013. See

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Opposition to County of Alameda Motion, ECF No. 26. To avoid any prejudice to the County of

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Alameda, it shall have until August 16, 2013 to file a reply.

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As for the other defendants, Officer Cocanour was served on July 16, 2013, and to date he has

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not appeared or responded to Mr. Collins’s complaint in any way. Executed Summons (Cocanour),

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ECF No. 21. And Mr. Bazile and Mr. Acosta were not able to be served because they no longer are

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employed by the City of Oakland and Mr. Collins did not provide any other contact information for

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them. Unexecuted Summonses (Bazile and Acosta), ECF No. 17.

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This situation presents a problem for the court. 28 U.S.C. § 636(c) provides in relevant part:

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“Notwithstanding any provision of law to the contrary—(1) Upon the consent of the parties, a

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full-time United States magistrate judge or a part-time United States magistrate judge who serves as

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a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and

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order the entry of judgment in the case, when specially designated to exercise such jurisdiction by

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the district court or courts he serves.” This means that the court cannot rule on the County of

C 13-01493 LB
ORDER

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Alameda’s and the City of Oakland’s motions to dismiss because Officer Cocanour has not

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consented to (or declined) the court’s jurisdiction. See Young v. Williams, 393 Fed. Appx. 516, 517

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(9th Cir. 2010) (“a magistrate judge may, upon the consent of all parties, exercise jurisdiction over

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all proceedings in a civil matter”) (citing 28 U.S.C. § 636(c)); JPMorgan Chase Bank, N.A. v.

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Chavez, No. C 11–5129 PSG, 2011 WL 6760349, at *1 n.3 (N.D. Cal. Dec. 5, 2011) (“This court is

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ordering reassignment to a District Judge because, absent consent of all parties, a Magistrate Judge

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does not have authority to make case-dispositive rulings.” (citing 28 U.S.C. § 636(c)(1); Tripati v.

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Rison, 847 F.2d 548, 548–49 (9th Cir. 1988)). (Because they have not been served, Mr. Bazile and

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Mr. Acosta are not “parties” for consent purposes, see Ornelas v. De Frantz, C 00-1067 JCS, 2000

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WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) (citing Neals v. Norwood, 59 F.3d 530, 532 (5th

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Cir. 1995)), and therefore the court does not need their consent at this time.)

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For the Northern District of California

UNITED STATES DISTRICT COURT

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In light of this situation, and to give Officer Cocanour an opportunity to appear and consent to or

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decline the court’s jurisdiction, the court CONTINUES the hearing on the motions to dismiss from

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September 5, 2013 to September 19, 2013 at 9:30 a.m. in Courtroom C, 15th Floor, United States

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District Court, 450 Golden Gate Avenue, San Francisco, California, 94102.

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IT IS SO ORDERED.
Dated: August 8, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 13-01493 LB
ORDER

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