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Rodriguez v. Unknown-Named Disciplinary Hearings Agent

August 5, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before this court are a variety of motions and documents filed by plaintiff.*fn1 A hearing was held before the undersigned on August 5, 2010. Plaintiff Jose DeJesus Rodriguez, proceeding without counsel, appeared on his own behalf, and attorney Jason R. Morrish appeared on behalf of defendants Steve Moore, Sheriff of San Joaquin County, and Jeffrey Simmons. After careful consideration of the documents filed in this action, any argument presented at the hearing on August 5, 2010 and for the reasons discussed, plaintiff's filings and requests for relief will be denied as set forth below.


Plaintiff Jose DeJesus Rodriguez, a pro se litigant, is generally complaining in this lawsuit of his treatment by the San Joaquin County Sheriff's office while incarcerated at the San Joaquin County Jail. Plaintiff filed a motion for preliminary injunction in this action on December 29, 2009. (Dkt. No. 16.) The undersigned recommended denial of the motion for preliminary injunction in an order dated March 9, 2010. (Dkt. No. 36.) Those findings were adopted by District Judge Frank C. Damrell, Jr. on April 6, 2010. (Dkt. No. 43.)

Plaintiff filed nine documents with the clerk's office since the issuance of the findings and recommendations, all containing statements in the caption that they are to be heard on August 5, 2010, the date of the court-ordered status (pretrial scheduling) conference in this action.*fn2 On July 22, 2010, defendants Steve Moore, Sheriff of San Joaquin County, and Jeffery Simmons (collectively "defendants") filed a consolidated opposition to the plaintiff's filings. (Dkt. No. 55.) The court will, in this instance, address each of plaintiff's filings in turn. DISCUSSION Docket Nos. 38, 41: Motions for Reconsideration

Plaintiff filed a Motion for Reconsideration on March 16, 2010.*fn3 (Dkt. No. 38.) Plaintiff appears to be seeking reconsideration of the court's order "only" denying defendants' motion to dismiss "without prejudice."*fn4

In the usual case, a party seeking reconsideration of an order has the burden of setting forth the material facts and circumstances surrounding each motion for which reconsideration is sought, including "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion," and "why the facts or circumstances were not shown at the time of the prior motion." Local Rule 230(j)(3), (4).

Plaintiff's motion for reconsideration, however, seeks relief from an order that was favorable to him. Plaintiff's complaint about this court's order denying defendant's motion to dismiss without prejudice is moot and will be denied. Defendants have now answered the complaint, and no further motions to dismiss are pending. Nor has plaintiff presented any basis for reconsideration of the court's order denying dismissal, and therefore plaintiff's request for reconsideration is denied.

Docket Nos. 39, 41: Memorandum of Law re Motion for Reconsideration and Motion for Summary Adjudication re Affirmative Defenses On March 19, 2010, plaintiff filed a document entitled "Memorandum of Law in Support of Plaintiff's Motion for Reconsideration of Ruling on Defendants' Motion to Dismiss and For Summary Adjudication re Defendants' Defective 'Eighteenth Affirmative Defense.'" (Dkt. No. 39.) Plaintiff complains of defendants' 18th affirmative defense in their answer which generally asserts governmental immunity from the allegations of the complaint. (Dkt. No. 39 at 2.) Plaintiff seeks summary adjudication "to completely dispose of this affirmative defense," contending, among other things, that this eighteenth affirmative defense is overly broad, legally frivolous and meritless. (Dkt. No. 39 at 4.)

On March 25, 2010, plaintiff filed a document nearly identical to Docket No. 39, except that plaintiff is challenging defendants' nineteenth affirmative defense instead of their eighteenth affirmative defense. (Dkt. No. 41. ) In this filing, plaintiff claims that defendants' invocation of the qualified immunity afforded public officials under the Eleventh Amendment to the United States Constitution is unwarranted. Plaintiff contends without evidentiary support that because defendants are a local government entity rather than an arm of the state that they are not entitled to Eleventh Amendment immunity. (Dkt. No. 41 at 3.)

Plaintiff's requests for summary adjudication are premature and procedurally defective. Plaintiff has not noticed these motions for hearing pursuant to Local Rule 230(b). Moreover, plaintiff has not filed Statements of Undisputed Facts as required by Local Rule 260(a). Pro selitigants are bound by the rules of procedure, even though pleadings are liberally construed in their favor. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Further, defendants point out that the parties have not yet conducted discovery, and the court questions without herein deciding whether plaintiff would be able to support a procedurally proper motion for summary adjudication at this early stage of the action. (Dkt. No. 55 at 4.) For the foregoing reasons, plaintiff's motions for summary adjudication are denied without prejudice. Plaintiff may, at the appropriate time, with the proper procedures and with the necessary evidence and/or legal support, seek further summary adjudication from this court.

Docket Nos. 40, 42: Requests for Judicial Notice

Plaintiff filed a request for judicial notice on March 22, 2010, which he states was filed concurrently with his motion for reconsideration of the ruling on defendants' motion to dismiss and summary adjudication regarding defendants' allegedly defective eighteenth affirmative defense. Plaintiff seeks an order taking judicial notice that California Government Code section 820.4 "exists." (Dkt. No. 40 at 1.) On March 26, 2010, plaintiff filed a request for judicial notice for an order recognizing "that the 11th Amendment exists." (Dkt. No. 42.)

It is not necessary for plaintiff to file a separate request for judicial notice regarding a particular statute in support of his position. Reference to any statutes, law or other authority should be included in the motion and/or memorandum of points and authorities that seek affirmative relief. In fact, plaintiff cites to these laws within his memorandum of authorities in support of his requests for ...

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