United States District Court, D. Hawaii
JANET C. HOWELL, Plaintiff,
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
C. KAY SR. UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
December 19, 2018, Plaintiff filed a document styled
“MOTION/ACTION: RE-OPEN, REMOVE THE DISMISSAL WITH
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.
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.
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).
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
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.
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.
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
Whether the Amended Complaint and Supplements Complied with
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 ...