Fonseca v. California Department of Corrections and Rehabilitations et al

Filing 32

ORDER Re: Supplemental Pleading. Fonseca's request that the witness and defense counsel be disciplined or admonished is DENIED. Signed by Judge Larry Alan Burns on 8/13/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RODERICK OLAF FONSECA,

CASE NO. 14cv787-LAB (BLM)
Plaintiff,

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vs.
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ORDER RE: SUPPLEMENTAL
PLEADING

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, et al.,

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Defendants.

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Defendants moved to dismiss Plaintiff Roderick Fonseca's complaint, and Fonseca

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moved for a preliminary injunction. Both motions were referred to Magistrate Judge Barbara

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Major for report and recommendation. Judge Major received briefing, and on June 10 issued

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her report and recommendation. The Court later rejected it and issued its own ruling, granting

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the motion to dismiss and denying the motion for preliminary injunction. Fonseca then took

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an appeal, which is now pending.

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It appears Fonseca also submitted what he intended to be a supplemental brief either

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in support of his opposition to the motion to dismiss or in support of his motion for preliminary

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injunction. He dated this document June 10, 2015. Because of administrative delay, that

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document was not docketed until after the Court had dismissed the complaint and Fonseca

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had taken an appeal.

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14cv787

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Assuming Fonseca intended this document as supplemental briefing on the motion

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to dismiss, he submitted it far too late. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987)

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(“Pro se litigants must follow the same rules of procedure that govern other litigants.”) If he

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intended it as a reply brief on the motion for preliminary injunction, he was not given leave

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to file such a document. (See Docket no. 18 (Judge Major's Scheduling Order on Motion for

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Preliminary Injunction).)

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These are not merely minor technical slip-ups; Fonseca's tardy or unauthorized filing

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prevented Judge Major from taking his supplemental document into account when drafting

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and issuing her report and recommendation. Nor can it have been intended as objections to

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the report and recommendation, because Fonseca had not even seen the report and

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recommendation when he wrote the document. Because this case is on appeal, the Court

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lacks jurisdiction to reverse its decision and so cannot construe it as a motion for

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reconsideration of the Court's ruling.

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The motion does, however, request that defense counsel be admonished or

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disciplined for making false representations to the Court. The notice of appeal deprives the

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Court only of jurisdiction over the issues appealed, see Stein v. Wood, 127 F.3d 1187, 1189

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(9th Cir. 1997), so it appears the Court retains jurisdiction over attorney discipline. That being

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said, the document's claims of unethical or unprofessional conduct are groundless. The

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supposedly perjured testimony Fonseca points to merely embodies a dispute of law about

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whether fish is or is not counted as meat for purposes of the prison kosher diet. Even if the

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record supported Fonseca's charges of mendacity, which it does not, the witness' opinion on

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the legal status of fish was immaterial. Finally, even if the document had been docketed in

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time, it would have changed nothing. The Court considered and rejected Fonseca's argument

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about fish in the prison kosher diet, and nothing in the supplemental document would change

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that.

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///

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///

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///
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14cv787

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In short, for whatever purpose the supplemental document was offered, it is

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unpersuasive. Fonseca's request that the witness and defense counsel be disciplined or

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admonished is DENIED.

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IT IS SO ORDERED.
DATED: August 13, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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14cv787