Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Howell v. Respondeat Superiors All Mentioned Organizations

United States District Court, D. Hawaii

January 28, 2019

JANET C. HOWELL, Plaintiff,
v.
RESPONDEAT SUPERIORS ALL MENTIONED ORGANIZATIONS: STEINBACH CLINIC LANDSTUHL HOSPITAL IN GERMANY, DOD CONTRACT-TORS, GERMANY, CORONADO BASE CLINIC, CO CORONADO SECURITY AND CHIEF SECURITY, CORONADO, BALBOA HOSPITAL U.S. NAVY, MAKALAPA CLINIC BUMED, USN JUDGE ADVOCATES FLEET WEATHER, GERMANY & SAN DIEGO JOHN NEI EEOC WHITE, PETE CRUZ, Defendant.

          ORDER ADOPTING AS MODIFIED MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION

          ALAN C. KAY SR. UNITED STATES DISTRICT JUDGE

         For the reasons set forth below, the Court ADOPTS AS MODIFIED the Magistrate Judge's Findings and Recommendation, ECF No. 51, issued by Magistrate Judge Richard L. Puglisi on December 11, 2018.

         BACKGROUND

         Plaintiff Janet C. Howell (“Plaintiff”), proceeding pro se, filed her initial Complaint on October 17, 2017. ECF No. 1. On April 10, 2018, Plaintiff made a filing, ECF No. 11, that the Court construed as a request for leave to file an amended complaint, and the Court granted such leave, ECF No. 12. The Court also granted Plaintiff five extensions of time to file her amended complaint, see ECF Nos. 28, 32, 34, 36, 42, and extended the time for service of the amended complaint up to and including November 30, 2018, see ECF No. 45.

         Plaintiff filed her Amended Complaint on October 1, 2018, ECF No. 46, and then filed three additional documents that appeared to be supplements to her Amended Complaint, ECF Nos. 47, 48, 50. There is no indication on the docket that Plaintiff has served her Amended Complaint on any of the named Defendants.

         On December 11, 2018, Magistrate Judge Richard L. Puglisi issued his Findings and Recommendation That the District Court Dismiss Plaintiff's Amended Complaint with Prejudice (the “F&R”). ECF No. 51. Although the Magistrate Judge noted in the F&R's “Background” section that there was no evidence that Plaintiff had served her Amended Complaint, Id. at 2, his recommendation of dismissal was premised on the Amended Complaint's failure to comply with Rule 8 of the Federal Rules of Civil Procedure, Id. at 2-5. The Magistrate Judge explained that Plaintiff had “fail[ed] to state any discernable basis for judicial relief, ” Id. at 3, and further noted that the basis for Plaintiff's apparent challenge to a decision by the Navy Bureau of Medicine (“BUMED”) was unclear, Id. at 4-5 (noting that Plaintiff had not filed any agency decision that she was attempting to challenge). Finding it clear that no amendment could cure the defects in Plaintiff's Amended Complaint, the Magistrate Judge recommended that the dismissal be with prejudice. Id. at 5-6.

         On December 19, 2018, Plaintiff filed a document styled “MOTION/ACTION: RE-OPEN, REMOVE THE DISMISSAL WITH PREJUDICE ORDER PLEASE……………………………” Objection, ECF No. 52. Therein, Plaintiff states that “the Rule 8 were NOT in violations, ” Id. at 2, and asserts that she has “hired a Cash Basis Attorney to File My Formal Complaint, ” Id. Attached to Plaintiff's filing are the following, arguably relevant documents: (1) a printed page showing the leftmost half of an undated, one-paragraph email purportedly sent to Plaintiff by an individual named Nivro Eva, Hugo Anthony, or A. Hugo, wherein that individual seemed to solicit money from Plaintiff, Id. at 5; (2) a letter from the Tort Claims Unit of the Department of the Navy Office of the Judge Advocate General, dated June 15, 2017, denying Plaintiff's claims against the United States, which totaled $122, 000, 000 (the “June 2017 Letter”), Id. at 9; and (3) a letter from the Tort Claims Unit of the Department of the Navy Office of the Judge Advocate General, dated September 12, 2017, informing Plaintiff that her request for reconsideration had been received and granted, and that her claims were denied upon reconsideration (the “September 2017 Letter”), Id. at 8.[1]

         On January 18, 2019, Plaintiff filed a document styled “MOTION/ACTION: APPEAL TO THE THE MAGISTRATE JUDGE ORDER ON 12/11/18 ORDER DUE TO THE REPRESENTATIVE OF USN AND BUMED ARE THE ATTY. GENERAL OF WHERE THE LOCATIONS AND INJURIES HAPPENED[.]” ECF NO. 54. Plaintiff also filed, on the same date, a document styled “MOTION/ACTION: REQUEST FOR LEAVE OF ABSENCE FOR MEDICAL TREATMENTS OF DISFIGUREMENTS PSYCHOLOGIST TREATMENTS MULTIPLE KIND OF TREATMENTS WEDDING OF MY BROTHER OVERSEAS MY MBA/MHSA GRADUATION MY BIRTHDAY CELEBRATION 2nd Week of April[.]” ECF No. 53.

         STANDARD OF REVIEW

         The district court may accept those portions of a magistrate judge's findings and recommendation that are not objected to if it is satisfied that there is no clear error on the face of the record. United States v. Bright, Civ. No. 07-00311 ACK-KSC, 2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw. 2003).

         When a party objects to a magistrate judge's findings and recommendation, the district court must review de novo those portions to which the objections are made and “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(a); L.R. 74.2. Under a de novo standard, a district court “review[s] the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006).

         The district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation. Akhtar v. Mesa, 698 F.3d 1202, 1208 (9th Cir. 2012). The district court may receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C); L.R. 74.2. The district court may consider the record developed before the magistrate judge, but the Court must make its own determination on the basis of that record. L.R. 74.2.

         DISCUSSION

         “A document filed pro se is ‘to be liberally construed[.]'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Here, the Court construes Plaintiff's filing-which was filed within fourteen days of the service of the F&R, Objection at 1; see LR 74.2; Fed.R.Civ.P. 6(d)-as an objection thereto. Plaintiff's more recent filing, however (which the Court construes as a second objection to the F&R) is untimely, having been filed more than fourteen days after the service of the F&R on Plaintiff. LR 74.2; Fed.R.Civ.P. 6(d); see King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”) (overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012)). The Court will therefore not consider the second objection.

         As noted previously, the F&R's recommendation of dismissal rests entirely on the Magistrate Judge's finding that Plaintiff has failed, in her Amended Complaint and the supplements filed thereto, “to state any discernable basis for judicial relief.” F&R at 3. And the F&R's recommendation that the dismissal be with prejudice is premised on the Magistrate Judge's finding that “it is clear that no amendment can cure the defects in Plaintiff's Amended Complaint[.]” Id. at 5. Although Plaintiff's Objection is rather difficult to interpret, and although it appears that the thrust of the arguments made therein pertain largely to the nondispositive issue of service, see generally Objection, the Court, mindful of its duty to this pro se Plaintiff, discerns some relevant arguments and addresses them as follows.

         I. Whether the Amended Complaint and Supplements Complied with Rule 8

         Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim” and that “[e]ach allegation . . . be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2), (d)(1). A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also McKeever v. Block,932 F.2d 795, 798 (9th Cir. 1991) (a complaint must contain “sufficient allegations to put defendants fairly on notice of the claims against them” (citations omitted)). While pro se pleadings are interpreted ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.