Semajay J. Jackson v. Charles Drew Middle School District, et al.

Opinion

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

11 SEMAJAY J. JACKSON, Case No. CV-17-03493-JLS (KES)

12 Plaintiff, Final Report and Recommendation of 13 v.

United States Magistrate Judge 14 CHARLES DREW MIDDLE SCHOOL DISTRICT, et al., 15 Defendant. 16

18 This Final Report and Recommendation is submitted to the Honorable

19 Josephine L. Staton, United States District Judge, under 28 U.S.C. § 636 and

20 General Order 05-07 of the United States District Court for the Central District 21 of California. 22 I. 23 PROCEDURAL BACKGROUND 24 On May 9, 2017, Plaintiff Semajay J. Jackson filed a civil rights 25 complaint against the Charles Drew Middle School District, Principle Karen 26 O’Riley in her individual and official capacity, and Teacher London Fitchner in 27 his individual and official capacity. (Dkt. 1 or “Complaint.”) The Court 28 dismissed the Complaint with leave to amend. (Dkt. 5.) On June 16, Plaintiff 1 filed a First Amended Complaint, naming the same defendants in the same

2 manner. (Dkt. 6 or “FAC.”) The Court dismissed the FAC with leave to

3 amend. (Dkt. 7.) On September 18, Plaintiff filed a Second Amended

4 Complaint, naming the same defendants in the same manner. (Dkt. 10 or

5 “SAC.”) In brief, Plaintiff alleges that in April 2013, during class, Fitchner

6 used excessive force to confiscate Plaintiff’s mobile phone and then filed a false

7 incident report that led to Plaintiff’s arrest and criminal charges that were later

8 dropped. See id.

9 Plaintiff, who is pro se and not a prisoner, gave the Court a mailing

10 address on South Central Avenue in Los Angeles, California. However, the

11 Complaint, FAC, and SAC were all mailed to the Court in envelopes with a

12 return address at San Quentin prison in San Quentin, California, to be

13 addressed to “Khalifah E.D. Saif’ullah.” (See Complaint at 16; FAC at 22; 14 SAC at 21.) An inmate of the same name has filed numerous pro se 42 U.S.C. 15 § 1983 lawsuits in the Eastern and Northern Districts of California. See, e.g., 16 Saif’ullah v. D.K. Sisto, No 07-00486, 2008 WL 2693618 (E.D. Cal. July 7, 17 2008) (dismissing Saif’ullah’s suit as identical to another suit he filed); 18 Saif’ullah v. Berry, No. 08-2960, 2010 WL 2851233 (E.D. Cal. July 20, 2010) 19 (dismissing Saif’ullah’s suit on screening); Saif’ullah v. Sisto, No. 08-01209, 20 2011 WL 1235197 (E.D. Cal. Mar. 31, 2011) (dismissing Saif’ullah’s suit after 21 revoking his in forma pauperis status, because defendants had “demonstrated 22 that plaintiff has previously filed more than thirty civil actions in the California 23 district courts while incarcerated,” including at least three strikes, and had 24 failed to disclose previous lawsuits to the court); Saif’ullah v. Albritton, No. 15- 25 5600, 2017 WL 2834119, at *5 (N.D. Cal. June 30, 2017) (declining to revoke 26 Saif’ullah’s in forma pauperis status and ordering summary judgment briefing). 27 Saif’ullah also goes by the name “Fernando A. Jackson,” sharing Plaintiff’s 28 surname. See Khalifah E.D. Saif’ullah, aka Fernando A. Jackson, Sr., v. 1 Chappell, __ U.S. __, 134 S. Ct. 1766 (2014) (denying petition for writ of

2 certiorari).

3 On October 3, 2017, the Court issued a Report and Recommendation

4 recommending dismissing almost all of Plaintiff’s claims with prejudice. (Dkt.

5 12.) The Court expressed concern, however, that Saif’ullah might have

6 prepared and signed the Complaint, FAC, and SAC without Plaintiff’s

7 knowledge or consent, or at least without Plaintiff’s reviewing or signing the

8 briefs. For example, in the SAC, Plaintiff spent considerable space discussing

9 Defendants’ alleged violations of the “Charles R. Drew Charter School Junior

10 Academy Handbook.” (See SAC at 14-19.) The handbook Plaintiff cited is the

11 handbook of a charter school in Atlanta, Georgia, not the Charles Drew

12 Middle School in Los Angeles, California, that Plaintiff apparently attended.

13 (Compare, e.g., SAC at 16 [block quota tion on “Progressive Discipline”], with 14 Charles R. Drew Charter School Junior Academy Student and Family 15 Handbook 2016-2017, at 22, available at 16 http://www.drewcharterschool.org/parents [identical block quotation on 17 “Progressive Discipline”]). The Court concluded that the best explanation for 18 Plaintiff’s confusion about his own middle school was that he did not draft or 19 review the SAC. (See Dkt. 12 at 9-10.) Rather, Khalifah Saif’ullah drafted the 20 SAC, and likely the Complaint and FAC. (Id.) The Court stated its belief that 21 Saif’ullah had signed the Complaint, the FAC, and the SAC—at best, on 22 Plaintiff’s behalf without alerting the Court, and at worst, without Plaintiff’s 23 knowledge or consent. (See id. at 10-12; compare Complaint at 15, FAC at 21, 24 and SAC at 20 [purported signatures of Plaintiff Semajay Jackson] with Dkt. 1 25 at 49 in Case No. 07-00486 [signature of Khalifah Saif’ullah, also known as 26 Fernando Jackson, where the “Jackson” appears identical to the “Jackson” 27 signed in the Complaint, FAC, and SAC].) 28 On November 21, 2017, the Court issued an Order to Show Cause as 1 follows:

2 As discussed at length in the Court’s Report and

3 Recommendation dated October 3, 2017, the Court has reason to

4 doubt whether Plaintiff drafted, reviewed, or signed the Second

5 Amended Complaint (“SAC”). See Dkt. 12 at 9-12. Given the

6 discrepancies identified in the Report and Recommendation,

7 Plaintiff is hereby ORDERED to show cause why this case should

8 not be dismissed for violations of Rule 11 of the Federal Rules of

9 Civil Procedure. The Court therefore ORDERS Plaintiff to appear

10 before this Court at 10:00 a.m. on December 8, 2017, at 411 W.

11 4th St., Santa Ana, California, 92701, in Courtroom 6D on the

12 sixth floor of the Ronald Reagan Federal Courthouse. Plaintiff

13 should be prepared to explain tru thfully to the Court whether he 14 prepared the Complaint, First Amended Complaint (“FAC”), or 15 SAC; whether he reviewed the Complaint, FAC, or SAC before 16 filing; whether he signed the Complaint, FAC, or SAC; and why 17 the Complaint, FAC, and SAC were mailed to the Court in 18 envelopes with a return address at San Quentin prison to be 19 addressed to “Khalifah Saif’ullah.” 20 If Plaintiff would miss coursework at school because of the 21 above order, Plaintiff should call the Court’s Deputy Clerk at (714) 22 338-3960 to arrange an alternative time to appear. Plaintiff is 23 expressly warned that his failure to appear as ordered herein may 24 result in his Second Amended Complaint being dismissed for the 25 reasons stated above and for failure to prosecute. 26 (Dkt. 13.) Plaintiff did not appear before the Court on December 8, 2017 (see 27 Dkt. 14), and he did not contact the Deputy Clerk to explain his absence or 28 request a continuance. The Court vacated its original Report and 1 Recommendation (Dkt. 15) and on December 13, 2017, issued a new Report

2 and Recommendation recommending that the SAC be dismissed without

3 prejudice for failure to prosecute and comply with Federal Rule of Civil

4 Procedure 11(a). (Dkt. 17.)

5 After the time for objections had passed, Plaintiff filed with this Court an

6 untitled document on a Civil Rights Complaint form. (See Dkt. 19.) Part of

7 the document appears to be a proposed third amended complaint. (See id. at 1-

8 17.) Because the Court had not given Plaintiff leave to file an amended

9 complaint,1 the Court interpreted the filing as late objections to the Report and

10 Recommendation, explaining how Plaintiff would amend his complaint if

11 given leave again to do so. The Court now issues this Final Report and

12 Recommendation addressing these objections. (See notes 2, 3 below.)

13 I I. 14 ANALYSIS 15 Rule 41(b) of the Federal Rules of Civil Procedure permits a court to 16 dismiss an action for failure to prosecute, failure to comply with the Federal 17 Rules, or failure to comply with a court order. Although “the plain language of 18 Rule 41(b) suggests that such dismissals may only result from a defendant’s 19 motion,” it is well established that “courts may dismiss under Rule 41(b) sua 20 sponte, at least under certain circumstances.” Hells Canyon Pres. Council v. 21 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). “In determining whether 22 to dismiss a claim for failure to prosecute or failure to comply with a court 23 order, the Court must weigh the following factors: (1) the public’s interest in 24 expeditious resolution of litigation; (2) the court’s need to manage its docket; 25 1 Under Federal Rule of Civil Procedure 15, a party may amend its 26 pleading only once as a matter of course within 21 days after serving it. In all 27 other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. 28 1 (3) the risk of prejudice to defendants . . . ; (4) the availability of less drastic

2 alternatives; and (5) the public policy favoring disposition of cases on their

3 merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

4 “The public’s interest in expeditious resolution of litigation always favors

5 dismissal.” Id. Conversely, “[p]ublic policy favors disposition of cases on the

6 merits” and therefore “weighs against dismissal.” Id. at 643. Each of the

7 remaining factors favors dismissal. Beginning with docket management, the

8 Court issued an order to show cause and gave Plaintiff a month’s notice, clear

9 instructions, and contact information for the Court’s Deputy Clerk should

10 Plaintiff need to reschedule. If it is not dismissed, then the case will remain on

11 the Court’s docket indefinitely unless and until Plaintiff decides to appear—that

12 is, assuming he is even aware of this suit.2

13 Prejudice in the context of Rule 4 1(b) analysis arises where a plaintiff’s 14 conduct “impair[s] defendant’s ability to proceed to trial or threaten[s] to 15 interfere with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642. 16 Here, Plaintiff’s unexplained failure to respond in any way to the Court’s order 17 2 In other circumstances, the Court might issue additional orders 18 attempting to ensure Plaintiff’s appearance. Here, given that several factors 19 suggest that Plaintiff either is not aware of the suit or does not intend to participate in it, the Court concludes that dismissal is appropriate at this stage. 20 21 The late-filed objections did not alleviate any of the Court’s concerns. Rather than explain why Plaintiff did not appear at the order-to-show-cause 22 hearing, or assure the Court that Plaintiff would appear at a later-scheduled 23 hearing, the objections merely state that Plaintiff “gave full authority to [his] Grandfather to prepare the complaint for [him.]” (Dkt. 19 at 1.) The objections 24 claim that Plaintiff read the complaint in full, yet the proposed third amended 25 complaint rectifies none of the deficiencies the Court has identified in the Report and Recommendation—including the lengthy quotations from the irrelevant 26 school in Georgia, which Plaintiff never attended. (See id. at 14-16.) Had 27 Plaintiff read the proposed complaint, he should have alerted Saif’ullah to this problem. 28 1 to show cause constitutes unreasonable delay, and his failure to explain the

2 anomalies identified in the Court’s original Report and Recommendation

3 threatens to interfere with the rightful decision of the case.

4 Finally, the undersigned finds that less drastic alternatives are not viable.

5 Given Plaintiff’s failure to appear, the Court can only conclude that, to the

6 extent Plaintiff was even aware of this lawsuit, he does not intend to appear

7 before the Court to explain Saif’ullah’s involvement in this case and assure the

8 Court that Plaintiff has complied and will comply with Federal Rule of Civil

9 Procedure 11. If Plaintiff is not willing to participate in mandatory, court-

10 ordered hearings, then the case cannot move forward—and if Plaintiff is not

11 able to participate in these hearings because he is not aware of them, then the

12 case most certainly should not move forward. The Court therefore

13 recommends dismissal for failure to pro secute. 14 The Court also recommends dismissal under Federal Rule of Civil 15 Procedure 11(a). The Court has sufficient reason to conclude that Plaintiff has 16 not reviewed the complaints filed in this case and that Saif’uhllah has been 17 signing pleadings on Plaintiff’s behalf without alerting the Court.3 This is a 18

19 3 The late-filed objections emphasize Plaintiff’s grandfather’s credentials as a paralegal. (See Dkt. 19 at 1-2, 19-24.) These credentials are irrelevant. First, 20 the Court recommends dismissing Plaintiff’s suit because there is no evidence 21 before the Court that Plaintiff is involved in the suit or even aware of it. He still has not explained why he did not appear before the Court when ordered to do 22 so. Second, Saif’ullah is not an attorney licensed to appear before the Court on 23 behalf of another person. See Local Rule 83-2.10.2 (“Any person representing himself or herself without an attorney must appear pro se for such purpose. That 24 representation may not be delegated to any other person, including a spouse, 25 parent or other relative, nor to any other party on the same side who is not represented by an attorney.”). Courts generally do not enforce this requirement 26 when plaintiffs are incarcerated, if it is evident that the plaintiff has participated 27 in preparing and reviewing the filings. Plaintiff is not incarcerated and, if he is to receive the benefits of appearing pro se, must in fact be pro se. 28 1 serious misrepresentation and evasion of responsibilities imposed by Federal

2 Rule of Civil Procedure 11(a), which states that every “pleading, written

3 motion, and other paper must be signed by . . . a party personally if the party is

4 unrepresented.” The Court therefore recommends dismissal for failure to

5 comply with Rule 11(a) in any filing in this case. See Ko v. Mut. Pharm. Co.,

6 Inc., No. 13-00890, 2013 WL 3338596, at *2 (N.D. Cal. July 1, 2013) (“[T]he

7 court must strike an unsigned paper unless the omission is promptly corrected

8 after being called to the attorney’s or the party’s attention. [Fed. R. Civ. P.

9 11(a).] . . . As Ko’s husband is neither a party nor an attorney authorized to

10 represent her, his signature does not satisfy the signature requirement of Rule

11 11(a). While ordinarily the court would give Ko an opportunity to correct this

12 error, other defects . . . obviate the need to correct the signature.”); see also

13 Local Rule 11-1 (requiring signature of party’s attorney or of party appearing 14 pro se on all documents filed with the Court), 83-2.1.1.1 (noting that, with 15 limited exceptions, an appearance before the Court on behalf of another person 16 may be made only by members of the bar of the Court); see also 5A Charles A. 17 Wright & Arthur R. Miller, Federal Practice and Procedure § 1333 (3d ed. 18 2004) (“[T]he Rule 11 signature requirement is not satisfied when a non-lawyer 19 signs a paper on behalf of an unrepresented party.”); Johns v. Cnty. of San 20 Diego, 114 F.3d 874, 876 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to 21 appear as an attorney for others than himself.’”) (quoting C.E. Pope Equity 22 Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). 23 The Court recommends dismissing this case without prejudice. The 24 extent of Plaintiff’s knowledge of this suit is unclear, and he should not be 25 prevented from bringing these claims in the future solely because a third party 26 brought them under his name. 27 / / / 28 / / / 1 II. 2 RECOMMENDATION 3 IT IS THEREFORE RECOMMENDED that the District Judge enter an 4 | order: (1) accepting this Final Report and Recommendation; and (2) dismissing 5 | the SAC without prejudice for failure to prosecute and for failing to comply 6 | with Rule 11. 7 8 | Dated: February 09, 2018 9 From E. Sesto 10 KAREN E. SCOTT United States Magistrate Judge 1] 12 NOTICE 13 Reports and Recommendations are not appealable to the Court of 14 | Appeals, but are subject to the right of any party to timely file Objections as 15 | provided in the Federal Rules of Civil Procedure and the instructions attached to 16 | this Report. This Report and any Objections will be reviewed by the District 17 | Judge whose initials appear in the case docket number. 18 19 20 21 22 23 24 25 26 27 28