Haynie v. Whyte

Filing 32

ORDER Dismissing Case with Prejudice. (Attachments: # 1 certificate of mailing). The March 10, 2011 motion hearing is vacated. The Clerk shall close the file and terminate any pending motions. Signed by Judge Koh on 3/4/2011. (lhklc3, COURT STAFF) (Filed on 3/4/2011)

Haynie v. Whyte

Doc. 32

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GARY W. HAYNIE, Plaintiff, v. RONALD M. WHYTE, U.S. DISTRICT JUDGE, Defendant. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) Case No.: 10-CV-02621-LHK ORDER DISMISSING CASE WITH PREJUDICE AND VACATING MARCH 10, 2011 HEARING

Presently before the Court are two motions filed by Plaintiff Gary W. Haynie ("Plaintiff"). Pursuant to Civil Local Rule 7-1(b), the Court finds these motions appropriate for resolution without oral argument. Accordingly, the March 10, 2011 motion hearing is vacated. As explained below, Plaintiff's complaint is DISMISSED WITH PREJUDICE. I. BACKGROUND On June 15, 2010, Plaintiff, proceeding pro se, filed a complaint and application to proceed in forma pauperis. See Dkts. #1 and 2. In his verified complaint, Plaintiff alleges that the Honorable Ronald M. Whyte was biased and rude in handling a prior case involving Plaintiff. On June 24, 2010, Magistrate Judge Patricia V. Trumbull filed a Report and Recommendation, which concluded that Plaintiff's complaint should be dismissed for failure to state a claim with leave to amend. See Dkt. #5. On July 15, 2010, Judge Jeremy Fogel adopted Magistrate Judge Trumbull's Report and Recommendation in its entirety, noting that Plaintiff did not file any objections to Magistrate Judge Trumbull's June 24, 2010 Report and Recommendation. See Dkt. #7. Judge 1
Case No.: 10-CV-02621-LHK ORDER DISMISSING CASE WITH PREJUDICE
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Fogel dismissed Plaintiff's complaint with leave to amend within thirty (30) days of his July 15, 2010 Order. On August 2, 2010, this case was reassigned to this Court for all further proceedings. On August 6, 2010, Plaintiff filed an "Objection to Judge Fogel's Order," which stated that he never received Magistrate Judge Trumbull's June 24, 2010 Order. See Dkt. #9. Plaintiff did, however, receive Judge Fogel's July 15, 2010 Order. In his August 6, 2010 filing, Plaintiff requested the opportunity to object to Magistrate Judge Trumbull's Report and Recommendation, and then went on to provide those objections. See id. at 1-2 (where Plaintiff states that he "never assigned this case to a Magistrate Judge," and "[a]fter reading Judge Patricia V. Trumbull's Order [he] found that there was nothing wrong with plaintiff's claim."). In a November 15, 2010 Order, this Court ruled that Plaintiff's objections did not provide a valid legal objection to Judge Trumbull's Report and Recommendation. See Dkt. #15. Accordingly, the Court agreed with Judge Fogel's July 15, 2010 Order adopting Magistrate Judge Trumbull's Report and Recommendation in its entirety, and dismissed the complaint. Out of respect for Plaintiff's representations that his receipt of Magistrate Judge Trumbull's Report and Recommendation was delayed, however, the Court granted Plaintiff an additional thirty days to amend his complaint. Plaintiff did not amend his complaint. Instead, on December 13, 2010, Plaintiff filed a "Notice of Hearing Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge" [dkt. #16], and on December 29, 2010 filed a "Motion for Entry of Default" [dkt. #22]. Plaintiff noticed these motions for a March 10, 2011 hearing date. II. ANALYSIS The Court recognizes that it has "a duty to construe pro se pleadings liberally, including pro se motions as well as complaints." Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003). Even liberally construed as an amended pleading, neither of Plaintiff's additional filings provides any factual allegations sufficient to state a claim. In the "De Novo Determination" filing, Plaintiff repeats his objection to Judge Trumbull's original Report and Recommendation. However, in its prior Order on November 15, 2010, this Court already adopted the Report and Recommendation as its own ruling. In other words, the Court granted leave to amend to allow 2
Case No.: 10-CV-02621-LHK ORDER DISMISSING CASE WITH PREJUDICE

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Plaintiff the opportunity to allege additional facts upon which relief could be granted, not to have Plaintiff repeat the same objections this Court has already overruled. Similarly, Plaintiff's motion for entry of default includes no additional factual allegations upon which relief may be granted. As Plaintiff has not established a valid claim or right to relief, default judgment is not appropriate. See Fed. R. Civ. P. 55(d) ("A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court."). Plaintiff's allegations have now been reviewed four times by three different Judges. Despite multiple opportunities to do so, Plaintiff has been unable to provide sufficient factual allegations to state a claim upon which relief may be granted. In these circumstances, further leave to amend is futile. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) ("A district court may deny a plaintiff leave to amend if it determines that `allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency,' or if the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure deficiencies."). Accordingly, Plaintiff's complaint is DISMISSED WITH PREJUDICE. The Clerk shall close the file and terminate any pending motions. The March 10, 2011 hearing is vacated. IT IS SO ORDERED.

Dated: March 4, 2011

_________________________________ LUCY H. KOH United States District Judge

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Case No.: 10-CV-02621-LHK ORDER DISMISSING CASE WITH PREJUDICE