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Jayne v. Sprint PCS

February 19, 2009

MICHAEL AARON JAYNE, PLAINTIFF,
v.
SPRINT PCS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Introduction

Plaintiff, a state prisoner proceeding pro se,*fn1 seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) defendant Sprint PCS' motion to dismiss, filed on 6/23/08; 2) defendants Harrison, Heise and Abney's motion to dismiss, filed on 7/23/08, to which plaintiff filed his opposition on 7/30/08, after which these defendants filed their reply on 8/06/08; 3) plaintiff's motion for default judgment, filed on 7/10/08, to which defendant Sprint PCS, filed an opposition on 8/01/08; 4) plaintiff's motion to consolidate cases, filed on 9/02/08, to which defendants Anderson Police Department, Blunk and Collier, filed their opposition on 9/17/08, and to which defendant Sprint PCS filed its opposition, on 9/24/08.

Plaintiff's Allegations

This action proceeds on plaintiff's original complaint, filed on 11/26/07. Initially, the matter proceeded against the following defendants: Sprint PCS; Redding Police Officer Solada; Anderson Police Officer Steve Blunk; Anderson Police Detective Collier, Anderson Police Dispatch; California Department of Corrections and Rehabilitation (CDCR) Parole Supervisor Rick Burrows; CDCR Parole Supervisor John Heise; CDCR Parole Agent Randy Abney; CDCR Parole SSU Agent Harrison; Parole Agent Larry Welch. However, plaintiff has subsequently sought voluntarily dismissal of, or stipulated to, the dismissal of defendants Burrows and Welch (see docket # 18 & # 20), as well as defendants Solada, Heise, and Harrison (see docket # 72, # 74 & # 77), and these defendants have been dismissed. The remaining defendants, therefore, are: Sprint PCS; Officer Steve Blunk; Detective Collier, Anderson Police Dispatch; CDCR Parole Agent Randy Abney. The summary of plaintiff's allegations will only peripherally reference any since dismissed parties.

Plaintiff alleges that, upon paroling from SATF (California Substance Abuse Treatment Facility) to the Redding Parole Office, on 10/11/06, he complained of having been subjected to retaliation by (now dismissed) defendant Welch, his previous parole agent. Plaintiff alleges that Welch's fabrications led to a one-year parole revocation for plaintiff, even though he was found "factually innocent" in October, 2005 criminal proceedings, and was subjected to "illegal confinement," from October 2005, until October, 2006. When plaintiff's complaints against Welch led to an Internal Affairs investigation, a parole supervisor (unnamed) recommended plaintiff's parole be transferred to Redding Region 2. Plaintiff made contact with CDCR Parole Supervisors Burrows and Heise (no longer defendants) in Sacramento to complain of harassment by defendant Abney, Welch's partner. Complaint, pp. 3-5.

Plaintiff was eventually transferred to the Red Bluff parole office due to his fear of defendant Abney and (now-dismissed defendant) Welch. In February of 2007, plaintiff told defendant Abney that someone had told him that Abney was a child molester, which enraged Abney, who told plaintiff he was in for "a rude awakening." On March 3, 2007, defendant Abney and Harrison (now dismissed as a defendant), ordered a Redding police officer to book plaintiff into Shasta County Jail, saying that plaintiff was "unauthorized to be in Shasta County." Complaint, p. 5.

Plaintiff told Officer Solada (now dismissed as a defendant) that he was authorized to be in Shasta County for his work and college and also said that defendant Abney was not authorized to be in contact with plaintiff because of his past threats and the Internal Affairs investigation and, moreover, that Abney had never been his parole agent. Plaintiff was taken down at gunpoint in the Burger King parking lot in Redding at 4:00 p.m. on 3/03/07, by Solada, but as plaintiff has dismissed Solada from his suit, the court will not address plaintiff's claims that Solada used excessive force. Plaintiff claims to have insisted that Solada contact his Red Bluff parole agent, Ben Ananauvo. Plaintiff complains that his truck was impounded and that he spent three days in "illegal confinement," losing wages ($1500) and the cost of impound fees ($500). When plaintiff contacted Heise (no longer a defendant), he was told that what had happened would not happen again; plaintiff demanded to be reimbursed for his losses. Non-defendant PA III Sullivan "refused to lodge a 602 complaint." Complaint, p. 6.

About two weeks later, a Miss Shanda (or Shonda) Kessler (not a defendant) went to the Anderson police to file a restraining order against plaintiff, then maliciously contacted defendant Abney, bypassing plaintiff's assigned parole agent, so that Abney would go after plaintiff. Defendants Blunk, Collier and the defendant identified only as [Anderson police] Dispatch, coerced Kessler into saying plaintiff had held her against her will for six hours. These defendant officers than sent an exigent circumstances request/demand to plaintiff's cell phone provider, saying that plaintiff was wanted for kidnapping and that the cell phone service was to provide plaintiff's cell phone records and GPS location. Plaintiff asserts that this request/demand was made "without a warrant or real cause," and claims that defendant Sprint PCS provided the cell phone records to the Anderson police "based on this false and illegal pretense." Complaint, p. 7.

Defendant Abney served an illegal search warrant at the house of his best friend, Raymond Sargent. Abney also threw plaintiff's brother-in-law down at gunpoint telling him: "Michael Jayne*fn2 is going to die." Complaint, p. 7.

Plaintiff sent a complaint to the Redding police chief, the Anderson police, and filed a complaint against defendant Abney with the California Office of Internal Affairs. He asserts that [administrative] remedies as to defendant Sprint are not available. Plaintiff complains that defendant Abney has fabricated a parole report saying that plaintiff threatened someone named Kittrell Wyrick, as well as Shanda Kessler. Calling Abney a "rogue agent," plaintiff says this defendant also lied about the facts of Kessler's statements in his report concerning plaintiff's having allegedly impersonated an officer, having threatened Wyrick's sister, and saying that plaintiff "would die from suicide by cop." Complaint, pp. 7-8. Plaintiff seeks money damages and injunctive relief.

Plaintiff's Motions

Motion for Judgment of Default

Plaintiff's motion for a default judgment, directed at defendant Sprint PCS, lacks foundation and is misconceived. Plaintiff contends that defendant Sprint failed to answer the complaint timely. See motion, filed on 7/10/08 (docket # 34). The order, directing service of the complaint upon, inter alia, defendant Sprint PCS, was filed on 4/15/08 (# 14); thereafter, a waiver of service of summons, signed by counsel for defendant Sprint and dated 5/20/08, was filed in this court on 6/03/08 (# 25). Contained within the signed waiver is the admonition that "an answer or motion under Rule 12" must be filed in this court and served upon plaintiff "within 60 days after 4/24/2008...." Docket # 25, p. 3. Defendant Sprint's motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), was filed on 6/23/08 (# 29), precisely 60 days after 4/24/08. Defendant Sprint's motion was a timely response and plaintiff's motion for a judgment of default by this defendant will be denied.

Motion to Consolidate Cases

Plaintiff asks that this case be consolidated with two other cases he claims to be active and in which he is a plaintiff, CIV-S-06-0097 JKS DAD P, and CIV-S-08-0764 GEB EFB P, into a single case and that any such consolidated case or cases then be assigned to District Judge William B. Shubb and Magistrate Judge John F. Moulds. See motion, filed on 9/02/08 (docket # 60). The motion was opposed by defendant Sprint, on 9/24/08 (# 75), as well as by defendant Solada, by a filing on 9/16/08 (# 68), although defendant Solada has since been dismissed. Plaintiff claims that the same defendants are at issue in all three cases and asks that the cases be screened as one case and all defendants be served.

Under Fed. R. CIV. P. 42(a), cases involving "a common question of law or fact" may be consolidated, as former defendant Solada noted. However, such consolidation is not warranted herein.

In the first place, this motion remains to be addressed in CIV-S-06-0097 JKS DAD P, which is the more appropriate forum because that is the earliest initiated action of the three. Second, court records of the two other cases of which this case takes judicial notice,*fn3 demonstrate that plaintiff is not proceeding against only the same defendants in each. Third, each case is already proceeding on a separate track; in fact, it appears that plaintiff subsequently voluntarily dismissed Case No. CIV-S-08-0764 GEB EFB P, by a filing dated 9/10/08 (docket # 16), which would obviously mean it is not an active case (although he appears to have later sought to vacate that request, on 9/23/08 (docket # 18)).

Fourth, plaintiff contends that he seeks the assignment of specific judges (neither of whom are the judges currently assigned to any of the cases at issue) because these judges are familiar with the facts surrounding his claims involving the Shasta County Sheriff's Department. Plaintiff is apparently referencing one of his closed cases, CIV-S-02-0418 WBS JFM P (a case to which yet another closed case was related, CIV-S-03-2034 WBS JFM P). Court records in Case No. CIV-S-03-2034 WBS JFM P indicate that Judge Moulds dismissed that case in an order, filed on 4/29/04 (# 12), pursuant to plaintiff's request. In CIV-S-02-0418 WBS JFM, Judge Moulds issued an order, filed on 11/18/08 (# 137), noting that that case had been closed since 3/08/05, and denying, inter alia, plaintiff's motion for a consolidation of the three cases at issue in this motion, filed therein on 9/02/08 (as was the motion herein), and advising plaintiff that no further orders would issue in that case. Thus, it appears inappropriate for plaintiff to be seeking to have three different, subsequently filed cases proceed under judges who were assigned to cases that have been previously closed or dismissed. Such an effort to proceed with judges of his personal selection may constitute a rather unabashed and express form of judge-shopping, which is "conduct which abuses the judicial process." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). Finally, it appears that plaintiff's motion has been expressly denied by Judge Moulds. For all these reasons, this inapposite motion will be disregarded and vacated from this court's calendar.

Motions to Dismiss - Defendant Sprint PCS

The motion to dismiss, filed by defendant Sprint PCS (Sprint), was brought pursuant to ...


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