Lagmay v. Nobriga, et al
ORDER DENYING APPEAL OF MAGISTRATE JUDGE'S ORDERS re 89 - Signed by JUDGE DERRICK K. WATSON on 9/20/2018. (emt, )COURT'S CERTIFICATE of Service - Henry Lagmay served by First Class Mail to the ad dress of record listed on the Notice of Electronic Filing (NEF) on September 20, 2018. Participants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HENRY LAGMAY, #AO191119,
SHELLY NOBRIGA, et al.,
CIV. NO. 16-00408 DKW-KJM
ORDER DENYING APPEAL OF
MAGISTRATE JUDGE’S ORDERS
Before the court are Plaintiff’s Objections to Magistrate Judge Kenneth J.
Mansfield’s Orders denying Plaintiff’s proposed amended complaint, ECF No. 85,
and vacating all hearing dates and deadlines, ECF No. 88, after this action was
closed. Plaintiff gives no bases for his objections, beyond his statement that they
“Precedes ‘Notice of Appeal By- Right.’” Objections, ECF No. 89. The court
treats Plaintiff’s Objections as an appeal from the Magistrate Judge’s
Plaintiff commenced this action on July 25, 2016. See Compl., ECF No. 1.
On September 16, 2016, the court screened Plaintiff’s Complaint and
dismissed it with leave to amend for its failure to state a claim. Order, ECF No. 9.
On December 22, 2016, Plaintiff submitted the First Amended Complaint
(“FAC”). ECF No. 18. The court determined that the FAC stated claims against
Defendants Kaipo Sarkissian and Levy Christensen only, for the use of excessive
force and retaliation; all other claims against all other Defendants were dismissed
with leave to amend for failure to state a claim. See February 9, 2017 Order, ECF
After numerous objections, peripheral motions, interlocutory appeals, and
delays by Plaintiff in serving the FAC, Sarkissian and Christensen were finally
served on or about September 29 and filed their Answer on November 28, 2017.
On January 29, 2018, Magistrate Judge Mansfield issued a Rule 16
Scheduling Order, which set the deadline for motions to join parties or amend the
pleadings as July 31, 2018. ECF No. 63.
On June 1, 2018, Defendants filed a Motion for Summary Judgment for
Plaintiff’s alleged failure to exhaust prison administrative remedies prior to
bringing suit. ECF No. 74.
On July 10, 2018, Plaintiff filed an Opposition to the Motion for Summary
Judgment. ECF No. 79.
On July 31, 2018, Defendants filed their Reply to Plaintiff’s Opposition.
ECF No. 80.
On July 30, 2018, Plaintiff signed a request to file a Motion to Join
Additional Parties and to Amend Pleadings; its mailing envelope shows that it was
received by prison officials on July 31, 2018. See ECF Nos. 81, 81-1. The court
received and docketed the Motion on August 7, 2018. Defendants opposed the
Motion. ECF No. 82.
On August 14, 2018, Magistrate Judge Mansfield denied Plaintiff’s request
for an extension of time to file a Motion to Join Additional Parties and to Amend
Pleadings. August 14, 2018 Order, ECF No. 83. Magistrate Judge Mansfield held
that Plaintiff failed to show good cause or diligence for the requested extension of
time and failed to explain who he sought to add as additional parties and what
specific amendments to the FAC he sought. Id.
On August 27, 2018, Plaintiff submitted a 110-page proposed amended
complaint, labeled “Fed. R. Civ. P. 10.(c) Enforced Thoroughly Through-Out
Above – 111 Mentioned Pages As Published.” ECF No. 84. The proposed
pleading renamed all of the Defendants and realleged all of the claims that were
dismissed in the February 9, 2017 Order, and, although this is not clear, named
new Defendants. It appears that Plaintiff mailed the proposed amended complaint
to the court before he received the August 14, 2018 Order.
On August 30, 2018, Magistrate Judge Mansfield issued a second order that
explained that Plaintiff’s request for an extension of time to file an amended
pleading and naming new parties had been denied on August 14, 2018, and the
court would not now consider the proposed amended pleading. See Entering
Order, ECF No. 85. Magistrate Judge Mansfield also explained that, if Plaintiff
intended the document as some other type of motion, it was denied for the reasons
set forth in the August 14, 2018 Order.
On August 31, 2018, this court granted Defendants Sarkissian and
Christensen’s Motion for Summary Judgment for Plaintiff’s failure to exhaust
available prison administrative remedies before he brought this action. Order, ECF
No. 86. All pending motions were terminated and Judgment was entered that day.
See id.; and ECF No. 87.
On September 4, 2018, Magistrate Judge Mansfield vacated all hearing dates
and deadlines. ECF No. 88.
As noted, Plaintiff objects to the August 30 and September 4, 2018 Orders.
Pursuant to 28 U.S.C. § 636(b)(1), Rule 72(a) of the Federal Rules of Civil
Procedure, and Local Rule 74.1, any party may appeal to the district court any
pretrial nondispositive matter determined by a Magistrate Judge. Such an order
may be reversed by the district court judge only when it is “clearly erroneous or
contrary to law.” Bhan v. NME Hosp., Inc., 929 F.2d 1404, 1414-15 (9th Cir.
1991). An appeal of a magistrate judge’s nondispositive order must be served and
filed within 14 days after being served with a copy of the order. Fed. R. Civ. P.
72(a). The threshold of the “clearly erroneous” test is high. See Boskoff v. Yano,
217 F. Supp. 2d 1077, 1083 (D. Haw. 2001) (“Under the ‘clearly erroneous’
standard, the lower court’s ruling must be accepted unless, after reviewing the
entire record, this Court is left with the definite and firm conviction that a mistake
has been committed.” (quotations and citations omitted)); Thorp v. Kepoo, 100 F.
Supp. 2d 1258, 1260 (D. Haw. 2000) (the clearly erroneous standard is
“significantly deferential, requiring a definite and firm conviction that a mistake
has been committed”); accord United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948) (“A finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.”); Burdick v. Comm’r Internal
Revenue Serv., 979 F.2d 1369, 1370 (9th Cir. 1992) (“A finding of fact is clearly
erroneous if we have a definite and firm conviction that a mistake has been
First, to the extent Plaintiff is objecting to Magistrate Judge Mansfield’s
August 14, 2018 Order denying his motion for an extension of time to join parties
and amend pleadings, his objections are untimely. See Fed. R. Civ. P. 72(a).
Plaintiff does not explain when he received the August 14, 2018 Order or why it
took him more than one month to object to it, when he was able to timely object to
orders issued later in time. And, although Plaintiff only objects to the August 30
and September 4, 2018 Orders, apparently to avoid the time bar presented under
Fed. R. Civ. P. 72(a), the substance of his objections are clearly directed to the
August 14, 2018 Order’s denial of his motion to extend time.
Second, the court discerns nothing that is clearly erroneous or contrary to
law within the August 14 and 30, or September 4, 2018 Orders, and Plaintiff
directs the court to nothing. The record clearly supports Magistrate Judge
Mansfield’s August 14, 2018 Order finding that Plaintiff was not diligent in
requesting an extension of time to file his Motion to Add Parties and Amend the
pleadings, and failed to provide any bases to favorably rule on the Motion.
Plaintiff’s claim that he was unable to timely file a motion to amend the pleadings
and add parties by July 31, 2018, because he was also ordered to submit an
appellate brief the same day is unpersuasive. Plaintiff knew of the deadline to file
the appellate brief in App. No. 18-15746 since June 26, 2018,1 and he knew the
district court deadline to move to amend the pleadings and add parties since
January 29, 2018. Plaintiff still does not adequately explain why he was unable to
file a motion in the district court or request an extension to do so before the
When Plaintiff finally submitted the proposed amended pleading, more than
two weeks after he had requested an extension of time, it became abundantly clear
that allowing Plaintiff to file the proposed amended complaint was futile. The
proposed amended pleading cured none of the deficiencies in Plaintiff’s original
Complaint and FAC, and allowing it to be filed would have needlessly delayed the
action. This is particularly clear in light of this court’s decision that Plaintiff failed
to exhaust his claims before commencing this action. “A district court does not
abuse its discretion in denying leave to amend where amendment would be futile.”
See Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002)).
Finally, Plaintiff’s objections to Magistrate Judge Mansfield’s September 4,
2018 Order vacating deadlines and hearings based on this court’s explicit order
On June 26, 2018, the Ninth Circuit Court of Appeals informed Plaintiff that it appeared
his appeal in No. 18-15746 was frivolous, and directed him to either dismiss the appeal or file a
statement explaining why it was not frivolous within 35 days. On August 6, 2018, Plaintiff filed
a statement that the appeal should go forward, and the appeal is pending.
denying all pending motions and directing the Clerk to terminate the action is
For the foregoing reasons, Plaintiff’s Objections to Magistrate Judge
Kenneth J. Mansfield’s Orders denying Plaintiff’s proposed amended complaint,
ECF No. 85, and vacating all hearing dates and deadlines, ECF No. 88, after this
action was closed are DENIED.
IT IS SO ORDERED.
DATED: September 20, 2018 at Honolulu, Hawaii.
/s/ Derrick K. Watson
Derrick K. Watson
United States District Judge
Henry Lagmay v. Shelly Nobriga, et al., Civil No. 16-00408 DKW-KJM; ORDER
DENYING APPEAL OF MAGISTRATE JUDGE’S ORDERS
Lagmay v. Nobriga, 1:16-cv-00408; Recon‘18 (appeal KJM ords after case closed
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