Jones v. Stolk

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOHNNY LEE JONES, III, Case No. 3:22-cv-00502-MMD-CSD 7 Plaintiff, ORDER v. [8] SGT STOLK, et al., [9] Defendants. [10] 11 I. SUMMARY 12 Pro se Plaintiff Johnny Lee Jones, III, who is an inmate in the custody of the Nevada 13 Department of Corrections (“NDOC”), brings this civil rights action under 42 U.S.C. § 1983 . 14 (ECF No. 7 (“Complaint”).) Before the Court is a Report and Recommendation (“R&R”) of 15 United States Magistrate Judge Craig S. Denney (ECF No. 120), recommending the Court 16 dismiss this action for Plaintiff’s failure to comply with court orders and disrespectful 17 conduct in court proceedings. Plaintiff filed an objection to the R&R. (ECF No. 159 18 (“Objection”).)1 As further explained below, because the Court ultimately finds that 19 dismissal as sanctions is too drastic in this case, the Court will reject the R&R. Accordingly, 20 the case will proceed, and the Court will address Plaintiff’s remaining pending motions and 21 objections. 22 II. BACKGROUND 23 The Court incorporates by reference Judge Denney’s description of the pertinent 24 procedural and factual background provided in the R&R, which the Court adopts to the [27] 1Defendants did not file a response to the Objection, and the deadline to do so has 28 passed. 2 III. DISCUSSION 3 The Court first addresses the R&R and Plaintiff’s Objection to the R&R, then 4 addresses Plaintiffs’ remaining pending motions and objections. 5 A. Plaintiff’s Objection to the R&R 6 Plaintiff objects to Judge Denney’s recommendation of dismissal as sanctions for 7 his failure to comply with court orders and his disrespectful and disruptive conduct. This 8 Court “may accept, reject, or modify, in whole or in part, the findings or recommendations 9 made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). Where a party timely objects to a 10 magistrate judge’s report and recommendation, then the Court is required to “make a de 11 novo determination of those portions of the [report and recommendation] to which 12 objection is made.” Id. Because Plaintiff objects to the entirety of the R&R (ECF No. 159 13 at 2), the Court’s review is de novo. 14 “District courts have inherent power to control their dockets,” and “[i]n the exercise 15 of that power, they may impose sanctions including, where appropriate . . . dismissal” of a 16 case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 17 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 18 obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52 , 19 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 20 F.2d 1258 , 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 21 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 22 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 23 apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) 24 (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421 , [27] 2The Court has also considered the transcript of the June 2, 2023 telephonic case 28 management conference (ECF No. 114), transcript of the June 16, 2023 telephonic show cause hearing (ECF No. 134), and the audio recordings of both proceedings. 2 rules). 3 In determining whether to dismiss an action for lack of prosecution, failure to obey 4 a court order, or failure to comply with local rules, the court must consider several factors: 5 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 6 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 7 disposition of cases on their merits; and (5) the availability of less drastic alternatives. See 8 Thompson, 782 F.2d at 831 ; Henderson, 779 F.2d at 1423-24 ; Malone, 833 F.2d at 130 ; 9 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53 . 10 Here, the Court finds that the first two factors, the public’s interest in expeditiously 11 resolving this litigation and the Court’s interest in managing the docket, weigh in favor of 12 dismissal. The Court agrees with Judge Denney (ECF No. 120 at 3-4) that Plaintiff’s 13 conduct on June 2, 2023 frustrated these interests because his use of profanity and 14 disrespectful conduct distracted from the proceedings and led to the initiation of a show 15 cause process. Moreover, court proceedings simply cannot proceed if Plaintiff walks out 16 and refuses to participate in them. 17 On the other hand, the Court finds that the third and fourth factors weigh against 18 dismissal. The risk of prejudice to Defendants would be high if Plaintiff’s disrespectful 19 conduct were to continue because Defendants would have to keep participating in 20 additional proceedings without advancing any substantive purpose. But the Court cannot 21 find any actual risk of prejudice to Defendants or unreasonable delay arising from having 22 to participate in the one show cause hearing on June 16, 2023 as a result of Plaintiff’s 23 behavior. The fourth factor—the public policy favoring disposition of cases on their 24 merits—strongly weighs against dismissal. While the Court agrees with Judge Denney 25 that it would be difficult to move the case forward toward a disposition on the merits if 26 Plaintiff continues his unacceptable conduct (ECF No. 120 at 4), the Court is inclined to 27 give Plaintiff another chance because it recognizes that Plaintiff has apologized in his 28 Objection and understands the seriousness of his conduct (ECF No. 159 at 2). Moreover, 2 Plaintiff does not continue to engage in disrespectful conduct, his case can move forward 3 toward a disposition on the merits. 4 Lastly, the fifth factor—the availability of less drastic alternatives—weighs slightly 5 against dismissal. The Court recognizes, as Judge Denney did (ECF No. 120 at 5), that 6 given Plaintiff’s status as an inmate proceeding in forma pauperis, typical less drastic 7 sanctions, such as monetary sanctions or civil contempt, may not be meaningful. However, 8 the Court still cannot find that dismissal is the appropriate sanction here because, as far 9 as the Court can tell, this was the first time that Plaintiff demonstrated outward disrespect 10 in a court proceeding. This is particularly true when, as Plaintiff notes (ECF No. 159 at 1011 11), it appears that he had not been warned before the fact that his failure to follow a court 12 order or conduct himself in a certain manner would result in dismissal of his action. See 13 Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992), as amended (May 22, 1992) (“[A] 14 district court’s warning to a party that his failure to obey the court’s order will result in 15 dismissal can satisfy the ‘consideration of alternatives’ requirement.”). 16 Because the relevant factors taken together weigh against dismissal, the Court 17 rejects the R&R and sustains the Objection in pertinent part.3 While the Court finds that 18 Plaintiff’s conduct during the June 2, 2023 proceeding was unacceptable and is 19 sanctionable, the Court finds that dismissal is too harsh and will defer its determination of 20 sanctions until the conclusion of this case. See Malone v. U.S. Postal Serv., 833 F.2d 128 , [21] 22 3Plaintiff argues in his Objection that Judge Denney is biased and partial. (ECF No. 159 at 3-9.) To the extent Plaintiff is arguing that Judge Denney is biased because of 23 adverse rulings against Plaintiff, the Court notes that “adverse rulings are not proof of misconduct.” In re Complaint of Jud. Misconduct, 900 F.3d 1163, 1166 (9th Cir. 2018). If 24 Plaintiff disagrees with a ruling by Judge Denney, he may appeal it to this Court under LR IB 3-1 or to the Court of Appeals as appropriate. [25] To the extent Plaintiff is alleging judicial misconduct, the Court notes that there is a 26 separate process for making complaints of judicial misconduct. Complaints of judicial misconduct against judges in this district can be directly filed with the Ninth Circuit, Office 27 of the Circuit Executive. Information about complaints regarding judicial misconduct, including the appropriate form, can be found at 28 https://www.ca9.uscourts.gov/misconduct/guidelines/. 2 circumstances.”). Plaintiff is warned that if he continues to engage in disrespectful conduct 3 in court proceedings, the Court will more immediately consider sanctions, which could 4 include dismissal of this action. 5 B. Pending Motions and Objections 6 Having rejected the R&R and allowed the case to proceed, the Court addresses 7 Plaintiff’s remaining pending motions and objections. 8 1. First R&R (ECF No. 63) 9 Plaintiff filed emergency motions for a preliminary injunction or temporary 10 restraining order (ECF Nos. 11, 12).4 Plaintiff requests that the Court order the NDOC “to 11 keep [him] sep[a]rated from all cert team members at Ely State Prison” (“ESP”) due to an 12 incident in December 2022 in which these ESP correctional officers allegedly placed him 13 in contact with his alleged abuser—Defendant Chet Rigney—and engaged in retaliatory 14 behavior. (ECF No. 11 at 2-3.) Judge Denney recommends denying the emergency 15 motions because Plaintiff failed to comply with the requirements of Local Rule 7-4. (ECF 16 No. 63 at 1-2 (“First R&R”).)5 17 The Court ultimately adopts Judge Denney’s recommendation to deny the 18 emergency motions because Plaintiff’s requests for injunctive relief are moot.6 On May 4, [20] 4The motions are identical but were docketed separately to reflect the two forms of 21 relief sought. 22 5Plaintiff filed an objection to the First R&R (ECF No. 79), so the Court’s review is de novo. Defendants filed a motion to extend time (ECF No. 90) to respond to the 23 objection. Good cause appearing, the Court grants Defendant’s motion nunc pro tunc. However, even with the extension, Defendants filed their response (ECF No. 98) untimely, 24 so the Court declines to consider it. In any event, the response is entirely unhelpful because it is not responsive to Plaintiff’s objection to the First R&R (except for one 25 sentence) and is instead virtually identical to Defendants’ response (ECF No. 93) to Plaintiff’s objection to the second R&R (ECF No. 77 (“Second R&R”)). [26] 6The Court notes that titling a motion as an “emergency motion” does generally 27 trigger the requirements of LR 7-4. And even if the Court “liberally construes” Plaintiff’s motions as not triggering those technical requirements, as Plaintiff asks the Court to do 28 (ECF No. 79 at 2), or waives those requirements, the motions still fail for the reasons discussed further below. 2 Desert State Prison (“HDSP”) (ECF No. 95), and he has not filed any additional notices of 3 change of address since. Plaintiff is therefore no longer incarcerated at ESP, and there is 4 no indication that the identified ESP “cert team members” could continue to interact with 5 or harm Plaintiff while he is at HDSP. Nor is there any indication that there is a “reasonable 6 expectation” that Plaintiff would be sent back to ESP. See Darring v. Kincheloe, 783 F.2d 7 874, 876 (9th Cir.1986). Plaintiff’s request to be separated from all cert team members at 8 ESP is therefore moot. See Johnson v. Moore, 948 F.2d 517, 519-22 (9th Cir. 1991) 9 (finding that claims for injunctive relief relating to a prisoner’s conditions of confinement 10 are moot where a prisoner has been transferred to another facility and shows no 11 reasonable expectation of return). 12 Moreover, while Plaintiff’s emergency motions contain serious allegations of 13 retaliation that are concerning to the Court, they also fail because the allegations are not 14 part of Plaintiff’s underlying claims in this case—as they are related to a December 2022 15 incident that occurred after the filing of the suit—and concern ESP correctional officers 16 who are not named Defendants (other than Rigney). (ECF No. 11 at 2.) Plaintiff’s options 17 with regard to these allegations of a December 2022 incident are to continue to pursue 18 and exhaust his administrative remedies and then file a new lawsuit if he wishes to do so. 19 The Court accordingly overrules Plaintiff’s objection to the First R&R, adopts the 20 First R&R, and denies Plaintiff’s emergency motions for a preliminary injunction or 21 temporary restraining order (ECF Nos. 11, 12). 22 2. Second R&R (ECF No. 77)7 23 Plaintiff filed motions for a preliminary injunction or temporary restraining order 24 (ECF Nos. 3, 4)8 and a related motion for an evidentiary hearing (ECF No. 74). Plaintiff [25] 26 7Plaintiff filed an objection to the Second R&R (ECF No. 86), so the Court’s review is de novo. Defendants filed a response to the objection (ECF No. 93). [27] 8Again, the motions are identical but were docketed separately to reflect the two 28 forms of relief sought. 2 present in the room when he was allegedly physically and sexually abused on September 3 24, 2022, as well as from any family members of those individuals who also work at ESP. 4 (ECF No. 3 at 5.) In the alternative, Plaintiff requests that the Court order ESP to move 5 him to another facility. (Id.) Plaintiff also requests that the Court order ESP medical staff 6 to follow all medically required procedures meant to protect those who are engaging in 7 hunger strikes from serious harm or death. (Id.) Judge Denney recommends denying the 8 motions because Plaintiff has not demonstrated a likelihood of success on the merits of 9 his underlying excessive force claim or a likelihood of irreparable injury in the absence of 10 an injunction and because Plaintiff’s request regarding ESP medical staff lacks a sufficient 11 nexus to the claims proceeding in this action. (ECF No. 77 at 7-13.) 12 The Court ultimately adopts Judge Denney’s recommendation to deny all three 13 motions because all of Plaintiff’s requests for injunctive relief are moot.9 Again, as 14 discussed above, Plaintiff is no longer incarcerated at ESP, and there is no “reasonable 15 expectation” that Plaintiff would be returned to ESP. There is also no indication that 16 Defendants Rigney, Guzman, Gonzales, and Drummond—ESP officials identified in the 17 Complaint as participating in or being present for the September 24, 2022 incident (ECF 18 No. 6 at 5-6)—could interact with or harm Plaintiff while he is at HDSP. As for Plaintiff’s 19 request regarding ESP medical staff’s treatment of hunger strikers, the Court finds the 20 request also moot because he is no longer housed at ESP and he stated himself that he 21 ended his hunger strike on November 11, 2022 (ECF No. 8 at 2). 22 Accordingly, the Court overrules Plaintiff’s objection to the Second R&R, adopts the 23 Second R&R, and denies Plaintiff’s motions for a preliminary injunction or temporary 24 restraining order (ECF Nos. 3, 4) and related motion for evidentiary hearing (ECF No. 74). [26] 9The Court recognizes the deeply serious and concerning nature of Plaintiff’s 27 allegations of ESP officials’ conduct. But because Plaintiff’s requests for injunctive relief are moot, the Court does not address their underlying merits. To be clear, even though 28 Plaintiff’s requests for injunctive relief are moot, his underlying claims are still proceeding, and he still has a potential remedy in the form of damages. 2 denies as moot Plaintiff’s subsequently-filed emergency motion to supplement prior 3 preliminary injunction motions (ECF No. 136). 4 3. Objections/Appeals of Magistrate Judge Orders Under LR IB 3-1 5 Plaintiff filed several objections to Judge Denney’s orders under LR IB 3-1. (ECF 6 Nos. 43, 49, 76, 80-85.) “A district judge may reconsider any pretrial matter referred to a 7 magistrate judge in a civil or criminal case pursuant to LR IB 1-3, where it has been shown 8 that the magistrate judge’s ruling is clearly erroneous or contrary to law.” LR IB 3-1(a). 9 “[R]eview under the clearly erroneous standard is significantly deferential, requiring a 10 definite and firm conviction that a mistake has been committed.” Sec. Farms v. Int’l Bhd. 11 of Teamsters, Chauffers, Warehousemen & Helpers, 124 F.3d 999 , 1014 (9th Cir. 1997) 12 (citation omitted). “The reviewing court may not simply substitute its judgment for that of 13 the deciding court.” Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991) 14 (citation omitted). 15 a. Objection to Magistrate Judge Order on Motion for Sanctions (ECF No. 43) [16] 17 Plaintiff objects to Judge Denney’s order (ECF No. 41) denying Plaintiff’s motion 18 for sanctions against mediator Lydia Nussbaum (ECF No. 39). (ECF No. 43.)10 Plaintiff 19 argues that the order is clearly erroneous because it “does not indicate exactly why [the 20 motion] was denied,” which is “inappropriate” given Plaintiff’s pro se prisoner status. (Id. 21 at 2.) While the Court agrees with Plaintiff that in general more detailed explanations of a 22 court’s reasoning are helpful, especially for pro se parties, courts are not obligated to 23 provide a certain level of detail in their decisions, and it is not necessarily clear error when 24 a court fails to provide reasoning at the level of specificity a litigant would prefer. And while 25 Judge Denney’s order is sparse in its reasoning, it does appear to indicate that the motion 26 was denied because Plaintiff’s assertions that Nussbaum lacked diligence and failed to [28] 10Defendants did not file a response to the objection. 2 were insufficient to warrant sanctions against her.11 (ECF No. 41 at 1.) Judge Denney’s 3 ruling is based on Plaintiff’s own statements and is not completely unsupported. The Court 4 therefore finds that Plaintiff has not met the high burden of showing that Judge Denney’s 5 order was clearly erroneous or contrary to law and overrules Plaintiff’s objection. 6 b. Objection to Magistrate Judge Order on Motion to Compel (ECF No. 49) [7] 8 Plaintiff objects to Judge Denney’s order (ECF No. 47) denying Plaintiff’s motion to 9 compel production of a report and witness (ECF No. 35). (ECF No. 49.)12 Judge Denney 10 denied Plaintiff’s discovery motion—filed before the early mediation conference and the 11 deadline for the Attorney General’s Office to accept service for Defendants—as 12 premature. (ECF No. 47 at 2.) Plaintiff argues that Defendants had failed to provide a 13 missing report and the name of a potential witness referenced (by omission) in their 14 opposition to his motions for preliminary injunction and that Plaintiff needed that report and 15 name of the potential witness produced more immediately for purposes of resolving the 16 preliminary injunction motions. (ECF No. 49 at 2; ECF No. 35 at 2-3.) The Court finds that 17 Judge Denney did not clearly err in denying Plaintiff’s motion to compel as premature 18 because, according to the docket, Plaintiff filed it during a stay period, before service had 19 even been accepted for the named Defendants, and before a discovery schedule had 20 been set. Moreover, while the Court understands Plaintiff’s sense of urgency regarding [21] 22 11The Court would further note that mediators like Lydia Nussbaum provide a service to the Court in volunteering their time to help with the Court’s inmate mediation 23 program. It would obviously be unreasonable to sanction and chill voluntary service. 24 12Defendants filed a response to the objection arguing that Plaintiff failed to provide points and authorities in support of his motion, constituting a consent to the denial of the 25 motion under LR 7-2(d). (ECF No. 53.) Plaintiff then filed a motion for leave to file a reply (ECF No. 56). [26] The Court grants Plaintiff’s motion for leave to file a reply (ECF No. 56) and 27 considers the reply. The Court agrees with Plaintiff that he did provide points and authorities in his objection (id. at 2). However, even considering and agreeing with 28 Plaintiff’s reply, the Court does not find that Judge Denney’s order was clearly erroneous as discussed further below. 2 motions are addressed and whether additional evidence is required to determine the 3 outcome of a motion. Plaintiff’s objection (ECF No. 49) is therefore overruled. 4 c. Objection to Magistrate Judge Order on Motion for Recusal (ECF No. 76) [5] 6 Plaintiff filed an objection to Judge Denney’s order (ECF No. 59) denying Plaintiff’s 7 motion for recusal (ECF No. 54). (ECF No. 76.)13 Plaintiff’s motion to recuse was based 8 on his argument that Judge Denney’s order (ECF No. 47) denying Plaintiff’s motion to 9 compel (ECF No. 35) was “so blatantly flawed that jurists of reason could conclude that 10 he possesses a hidden agenda.” (ECF No. 54 at 2.) In his objection, Plaintiff argues that 11 Judge Denney continues to miss his “fundamental point” that his motion to compel was 12 regarding his motions for preliminary injunction and has not “explain[ed] to a pro se Plaintiff 13 why a missing report from a response to a preliminary injunction motion was not necessary 14 for preliminary injunction resolution.” (ECF No. 76 at 2-3.) Again, the Court notes that while 15 a court’s decisions should be based on sound reasoning, it is not necessarily obligated to 16 provide explanations at the level of specificity a pro se party might prefer or explanations 17 that may not be necessary to the ultimate outcome of a decision. Moreover, Judge 18 Denney’s order appropriately addressed the recusal standard and need not have 19 necessarily discussed Plaintiff’s motions for preliminary injunction, which although related 20 were not the direct subject of the motion for recusal—the direct subject being alleged 21 personal bias and prejudice. 22 In Plaintiff’s supplement to the objection, he points out, as another purported 23 indication of bias, that Judge Denney had “inexplicably” sua sponte denied Plaintiff’s 24 emergency motion to supplement his motions for preliminary injunction (ECF Nos. 8, 64), 25 after having already granted the same motion months ago (ECF No. 9). (ECF No. 78 at 226 3.) While the Court can understand why this might be confusing, as far as this Court can [27] 28 13Plaintiff also filed a motion to supplement the objection (ECF No. 78), which the Court grants and considers. Defendants did not file a response to the objection. 2 only “insofar as the court will permit ECF No. 8 to serve as Plaintiff’s supplement to the 3 motions at ECF Nos. 3, 4, and 5” (ECF No. 9 at 2)—that is, merely permitted Plaintiff to 4 file the supplement and have it be considered—but then later denied the motion for both 5 procedural and substantive reasons after considering its substance (ECF No. 64 at 1-2). 6 This is permissible conduct and does not constitute bias. 7 For the reasons discussed above, the Court does not find that Judge Denney 8 clearly erred in denying the motion for recusal and therefore overrules Plaintiff’s objection 9 (ECF No. 76). 10 d. Objection to Magistrate Judge Order on Emergency Motion to Supplement (ECF No. 80) [11] 12 Plaintiff filed an objection to Judge Denney’s order (ECF No. 64) denying Plaintiff’s 13 emergency motion to supplement (ECF No. 8) his motions for injunctive relief. (ECF No. 14 80.)14 Plaintiff again argues that it does not make sense for Judge Denney to deny the 15 motion after having already granted it and ordered Defendants to file a response. (Id. at 16 2.) Again, as already discussed, while confusing, a court may grant leave for a litigant to 17 file a document—such as this supplement—to be considered, but it may subsequently 18 grant or deny the filing on its procedural and/or substantive merits. It appears that Judge 19 Denney did just that with Plaintiff’s motion to supplement. 20 Plaintiff next argues that the magistrate judge’s order is in effect a denial of a 21 preliminary injunction motion, and therefore, Judge Denney lacked the authority to even 22 issue such an order. (ECF No. 80 at 3.) Plaintiff is correct that magistrate judges must [24] 14Defendants filed a motion to extend time (ECF No. 89) to respond to Plaintiff’s 25 objection (ECF No. 80), as well as the remainder of Plaintiff’s objections (ECF Nos. 8185). Good cause appearing, the Court grants Defendants’ motion to extend time nunc pro 26 tunc. However, again, even with the extension, Defendants filed their responses (ECF No. 99-104) untimely, so the Court declines to consider them. In any event, the responses are 27 again wholly unhelpful because they are virtually identical to Defendants’ response (ECF No. 93) to Plaintiff’s objection to the Second R&R and not responsive to Plaintiff’s 28 corresponding objections. The Court cautions Defendants’ counsel not to waste its time and resources with recycled briefing that is unresponsive. 2 motion was clearly styled as a “motion to supplement” and at the very beginning requests 3 the Court “to take this information into consideration when considering ECF [Nos.] 4, 5, 4 and 6.” (ECF No. 8 at 1-2.) Plaintiff does reiterate his requests for the Court to order ESP 5 officials to relocate him to another institution or, in the alternative, to separate him from his 6 alleged abusers from the September 24, 2022 incident and their family members. (Id. at 7 5-6.) However, that language does not transform the “motion to supplement”—a non8 dispositive, miscellaneous motion that a magistrate judge may rule on—into a standalone 9 motion for injunctive relief when it was clearly intended as a supplement. Moreover, Judge 10 Denny reasonably construed Plaintiff’s motion as a request “to introduce additional 11 evidence to support his motion for injunctive relief” (ECF No. 64 at 2), which he had the 12 authority to decide on its merits. See LR IB 1-3 (“A magistrate judge may hear and finally 13 determine any pretrial matter not specifically enumerated as an exception in 28 U.S.C. § 14 636(b)(1)(A).”); 28 U.S.C. § 636 (b)(1)(A) (not enumerating a “motion to supplement” or the 15 like as an exception). In any event, as already discussed above, this issue is effectively 16 moot given that Plaintiff’s requests for injunctive relief are moot. 17 The Court accordingly finds that Judge Denney did not clearly err when denying 18 Plaintiff’s motion to supplement. Plaintiff’s objection (ECF No. 80) is overruled. 19 e. Objection to Magistrate Judge Order on Motion to Supplement (ECF No. 81) [20] 21 Plaintiff filed an objection to Judge Denney’s order (ECF No. 70) denying Plaintiff’s 22 motion to supplement (ECF No. 33) his motions for injunctive relief and other related 23 motions. (ECF No. 81.) Judge Denney denied Plaintiff’s motion to supplement because 24 Plaintiff had not set forth good cause to supplement his motion under LR 7-2. (ECF No. 25 70 at 1.) In his objection, Plaintiff first argues that LR 7-2 provides that the Court may— 26 not must—strike supplemental filings made without leave of court, and Judge Denney 27 clearly erred by not being more lenient towards a pro se Plaintiff. (ECF No. 81 at 2.) While 28 it is true that pro se pleadings—such as a complaint—are held to less stringent standards 2 pro se parties nevertheless must follow the same procedural rules as other litigants, see 3 Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986); Ghazali, 46 F.3d at 54 4 (“Although we construe pleadings liberally in their favor, pro se litigants are bound by the 5 rules of procedure.”). LR 7-2(g) provides that “[a] party may not file supplemental 6 pleadings, briefs, authorities, or evidence without leave of court granted for good cause.” 7 Plaintiff—even as a pro se party—is still bound by the Local Rules, and Judge Denney did 8 not clearly err in denying Plaintiff’s motion to supplement under LR 7-2 and for lack of 9 good cause. 10 Plaintiff also argues that Judge Denney did not have the authority to deny this 11 motion because it was a request for injunctive relief. (ECF No. 81 at 2.) Just like the 12 previous motion to supplement discussed above, Plaintiff’s motion here was clearly styled 13 and intended as a non-dispositive “motion to supplement,” not as a motion for injunctive 14 relief in and of itself. (ECF No. 33 at 1.) And again, Plaintiff’s mere reiteration of his 15 “requests [for] an evidentiary hearing or the granting of his injunction requests or even 16 both” in the motion does not somehow convert it into a dispositive motion for injunctive 17 relief. (Id. at 4.) The Court finds no clear error here and overrules Plaintiff’s objection (ECF 18 No. 81). 19 f. Objection to Magistrate Judge Order on Emergency Motion to Combine and Supplement (ECF No. 82) [20] 21 Plaintiff filed an objection to Judge Denney’s order (ECF No. 65) denying Plaintiff’s 22 emergency motion to combine ECF Nos. 3, 4, 5, 8, 10, 11, 12, and the instant motion as 23 a “final request to supplement” (ECF No. 13). (ECF No. 82.) Judge Denney denied the 24 motion for failing to comply with the requirements for filing an emergency motion under LR 25 7-4. (ECF No. 65 at 1.) Plaintiff first argues that LR 7-4 uses permissive, not mandatory, 26 language regarding denial of an emergency motion for failure to comply with its 27 requirements and that it was unreasonable for Judge Denney to hold pro se Plaintiff to 28 such overly technical and stringent standards. (ECF No. 82 at 2-3.) Again, “[a]lthough 2 by the rules of procedure.” See Ghazali, 46 F.3d at 54 . And even if LR 7-4 does not require 3 courts to deny emergency motions for failure to comply with technical requirements, it 4 plainly permits courts to do so—including to pro se parties. See LR 7-4(c) (“Failure to 5 comply with the requirements for submitting an emergency motion may result in denial of 6 the motion.”). 7 Plaintiff again argues that his motion in itself constitutes a request for injunctive 8 relief that the magistrate judge did not have jurisdiction to deny. (ECF No. 82 at 4.) For 9 essentially the same reasons as discussed above, Plaintiff’s “motion to combine and 10 supplement” is plainly a non-dispositive motion requesting miscellaneous relief—related 11 to but not itself constituting a request for injunctive relief—that the magistrate judge 12 properly ruled on. (ECF No. 13 at 1.) 13 The Court accordingly finds that Judge Denney did not clearly err and overrules 14 Plaintiff’s objection (ECF No. 82.) 15 g. Objection to Magistrate Judge Order on Motion to Compel Production of Evidence (ECF No. 83) [16] 17 Plaintiff filed an objection to Judge Denney’s order (ECF No. 67) denying Plaintiff’s 18 motion to compel Defendants to produce the video recordings of the alleged September 19 24, 2022 use of force incident (ECF No. 27 at 18). (ECF No. 83.) Judge Denney denied 20 the motion as premature because it was filed before Defendants had filed an answer or 21 other responsive pleading and before discovery and scheduling order deadlines had been 22 set. (ECF No. 67 at 1.) Plaintiff argues that he “was not seeking the video footage for 23 regular discovery purposes” but “for resolution of his preliminary injunction motions.” (ECF 24 No. 83 at 2.) But again, courts have discretion to determine whether additional evidence 25 is necessary to determine the outcome of a motion and whether discovery may proceed 26 on an expedited or regular basis. See Thompson, 782 F.2d at 831 (“District courts have 27 inherent power to control their dockets.”). The video recordings of the alleged September 28 24, 2022 incident would certainly be relevant to addressing the merits of Plaintiff’s 2 injunctive relief standard. However, it appears the production of such evidence was not 3 necessary at the early stage that Plaintiff filed the motion because it would not have 4 changed the ultimate outcome of Judge Denney’s analysis. Judge Denney had found that 5 Plaintiff had not met the high bar of establishing a likelihood that he would suffer future, 6 imminent irreparable injury absent injunctive relief (ECF No. 77 at 11-12), and evidence of 7 past harm—however serious—does not necessarily demonstrate a likelihood of future 8 harm. The Court therefore finds no clear error and overrules Plaintiff’s objection (ECF No. 9 83). 10 h. Objection to Magistrate Judge Order on Motion to Supplement (ECF No. 84) [11] 12 Plaintiff filed an objection to Judge Denney’s order (ECF No. 72) denying Plaintiff’s 13 motion to supplement (ECF No. 10) his motions for injunctive relief to address the legal 14 requirements for injunctive relief. (ECF No. 84.) Judge Denney denied the motion under 15 LR 7-2 because Plaintiff did not “assert good cause as to why he neglected to address 16 [the legal requirements] in his original motion.” (ECF No. 72 at 1.) See LR 7-2 (“A party 17 may not file supplemental pleadings, briefs, authorities, or evidence without leave of court 18 granted for good cause.”). 19 Plaintiff argues that Judge Denney “is being overly technical” and omitted the fact 20 that Plaintiff did previously address the legal requirements but just did not do so 21 “specifically.” (ECF No. 84 at 2-3.) Regardless of whether Plaintiff did or did not already 22 address the legal requirements in his original motions for injunctive relief, as already 23 discussed above, Plaintiff—even as a pro se litigant—is still bound by the Local Rules, 24 and he filed a supplemental brief without leave of court or demonstrating good cause.15 [26] 15In his objection, Plaintiff points to an explanation demonstrating good cause that 27 is located in a separate, later filing (ECF No. 84 at 3), but that explanation needed to be provided beforehand or at least contained within Plaintiff’s motion to supplement to be 28 considered on that motion. 2 requirements of injunctive relief in his original motions (ECF No. 84 at 2), then Plaintiff’s 3 motion to supplement would not have been necessary and there was no good cause to 4 grant it on that basis either. And for the same reasons already discussed above, the Court 5 again finds unpersuasive Plaintiff’s repeated argument that a magistrate judge “cannot 6 deny a motion to supplement a motion for preliminary injunction because it amounts to a 7 denial of preliminary injunctive relief” (Id. at 4). 8 Accordingly, the Court finds that Judge Denney did not clearly err and overrules 9 Plaintiff’s objection (ECF No. 84). 10 i. Objection to Magistrate Judge Order on Motions to Supplement (ECF No. 85) [11] 12 Plaintiff filed an objection to Judge Denney’s order (ECF No. 73) denying Plaintiff’s 13 motions to supplement (ECF Nos. 14, 15)16 his motions for injunctive relief with a sworn 14 declaration from Javis Blake, an alleged victim and witness to racist abuse enacted by 15 Rigney and other officers against African American inmates on September 26, 2022 (ECF 16 No. 14-1). (ECF No. 85.) Judge Denney denied the motions because Plaintiff did not 17 demonstrate good cause for the failure to file this declaration with his original motion, 18 “other than the vague statement that he finally convinced Blake to provide a declaration.” 19 (ECF No. 73 at 1.) 20 Plaintiff argues that his statement was not vague and that it is clearly “not easy to 21 convince inmates who have been physically tortured and retaliated against . . . to bravely 22 tell their stories.” (ECF No. 85 at 2.) The Court finds the officer conduct alleged in Blake’s 23 declaration to be deeply concerning and understands that coming forth with such 24 allegations is very difficult in the face of potential retaliation. However, clear error is a high 25 standard to meet, and Judge Denney’s finding that Plaintiff’s explanation for the delay was 26 not sufficient to show good cause does not rise to the level of clear error. Reasonable [28] 16The two motions are identical in content. 2 that a mistake has been committed.” Sec. Farms, 124 F.3d at 1014. Moreover, Blake’s 3 declaration regarding the abuse he and others have faced does not necessarily support a 4 legal finding that Plaintiff himself faces a likelihood of imminent irreparable harm. In any 5 event, Plaintiff’s many objections, including this one, related to supplementing his motions 6 for injunctive relief are functionally moot since his requests for injunctive relief themselves 7 are moot. 8 The Court therefore finds that Judge Denney did not clearly err and overrules 9 Plaintiff’s objection (ECF No. 85). 10 IV. CONCLUSION 11 The Court notes that the parties made several arguments and cited to several cases 12 not discussed above. The Court has reviewed these arguments and cases and determines 13 that they do not warrant discussion as they do not affect the outcome of the motions and 14 objections before the Court. 15 It is therefore ordered that Plaintiff’s objection (ECF No. 159) to the Report and 16 Recommendation of U.S. Magistrate Judge Craig S. Denney (ECF No. 120) is sustained 17 in pertinent part. 18 It is further ordered that Judge Denney’s Report and Recommendation (ECF No. 19 120), recommending dismissal as sanctions, is rejected. 20 It is further ordered that this action will continue to proceed. 21 It is further ordered that Defendants’ motion to extend time (ECF No. 90) to respond 22 to Plaintiff’s objection to the First R&R is granted nunc pro tunc. 23 It is further ordered that Plaintiff’s objection (ECF No. 79) to Judge Denney’s First 24 R&R (ECF No. 63) is overruled. 25 It is further ordered that Judge Denney’s First R&R (ECF No. 63) is adopted. 26 It is further ordered that Plaintiff’s emergency motions for a preliminary injunction 27 or temporary restraining order (ECF Nos. 11, 12) are denied as moot. 28 It is further ordered that Plaintiff’s objection (ECF No. 86) to Judge Denney’s 1 || Second R&R (ECF No. 77) is overruled. 2 It is further ordered that Judge Denney’s Second R&R (ECF No. 77) is adopted. 3 It is further ordered that Plaintiffs motions for a preliminary injunction or temporary 4 || restraining order (ECF Nos. 3, 4) and related motion for an evidentiary hearing (ECF No. 5 || 74) are denied as moot. 6 It is further ordered that Plaintiff's emergency motion to supplement prior 7 || preliminary injunction motions (ECF No. 136) is denied as moot. 8 It is further ordered that Plaintiffs objection under LR IB 3-1 (ECF No. 43) is 9 || overruled. 10 It is further ordered that Plaintiff's motion for leave to file a reply (ECF No. 56) is 11 || granted. 12 It is further ordered that Plaintiffs objection under LR IB 3-1 (ECF No. 49) is 13 || overruled. 14 It is further ordered that Plaintiff's motion to supplement objection (ECF No. 78) is 15 || granted. 16 It is further ordered that Plaintiffs objection under LR IB 3-1 (ECF No. 76) is 17 || overruled. 18 Itis further ordered that Defendants’ motion to extend time (ECF No. 89) to respond 19 || to Plaintiff's objections (ECF Nos. 80-85) is granted nunc pro tunc. 20 It is further ordered that Plaintiff's objections under LR IB 3-1 (ECF Nos. 80, 81, 82, 21 || 83, 84, 85) are overruled. 22 DATED THIS 13" Day of September 2023. [24] MIRANDA M. DU 25 CHIEF UNITED STATES DISTRICT JUDGE