United States District Court, E.D. California
KASEY F. HOFFMAN, Plaintiff,
LASSEN COUNTY, et al., Defendants.
FINDINGS AND RECCOMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
matter is before the court on defendants' motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(7)
and 19. ECF No. 23. Plaintiff is proceeding pro se in this
case, and the matter was accordingly referred to the
undersigned for pretrial matters pursuant to Local Rule
302(c)(21). Plaintiff filed a response opposing
defendants' motion, dated April 5, 2017 but filed April
14, 2017. ECF No. 26. Defendants filed a reply, in which they
argued plaintiff's opposition was untimely. ECF No. 27.
Plaintiff filed a sur-reply to defendants' reply. ECF No.
28. Defendants filed an opposition to plaintiff's
sur-reply, arguing it should be disregarded as an
impermissible filing. ECF No. 28.
RELEVANT FACTUAL BACKGROUND
filed this action initially on May 5, 2016 as a pro se
prisoner complaint. After dismissing plaintiff's first
two complaints, the court ordered that plaintiff may pursue
his claims under the Indian Child Welfare Act
(“ICWA”), 25 U.S.C. §§ 1901-1963, as
stated in plaintiff's Third Amended Complaint. ECF Nos.
13 and 12.
alleges he is the biological father of an Indian child. ECF
No. 12 at 1, see also, 25 U5 U.S.C. § 1903(4)
(definition of “Indian child”). Plaintiff was
incarcerated on February 17, 2015. ECF No. 12 at 2. According
to plaintiff, Lassen County, acting through Lassen Family
Services and its employees (“defendants”),
“detained” plaintiff's son in May of 2015,
apparently under the authority of Cal. Welfare & Inst.
Code § 300(a), (b) & (e). Id. Defendants
allegedly interviewed plaintiff, who explained that he never
caused harm to the child, despite his past “life and
choices.” Id. at 2.
16, 2015, plaintiff states that defendants conducted a
“detention hearing” under Cal. Welfare &
Inst. Code § 300. Id. Plaintiff alleges that at
the hearing, defendants failed to present evidence that
plaintiff's child was at risk of serious harm; instead
they made false allegations of child abuse. Id.
Plaintiff alleges that defendants conspired to oppress the
plaintiff by giving custody of his child back to the
child's mother. Id. at 4. Plaintiff asks the
court to enter an order that plaintiff be allowed visits with
his son, that he be awarded compensatory damages, and that he
have joint legal and physical custody of his son.
preliminary matter, defendants assert that plaintiff's
response to their motion to dismiss was untimely and should
not be considered. ECF No. 27 at 2. Defendants also argue
that the court should not consider plaintiff's
unsolicited sur-reply. ECF No. 29.
defendants seek dismissal of this case pursuant to
Fed.R.Civ.P. 12(b)(7) for failure to join necessary parties
that cannot feasibly be joined, including plaintiff's
child's mother, his child, and the Indian tribe(s) to
which plaintiff claims the child is a member or eligible to
become a member for purposes of ICWA. ECF No. 23-1 at 2.
Untimely Response and Unsolicited Sur-Reply
court will consider plaintiff's opposition to
defendants' motion to dismiss. Pursuant to this
court's order of March 17, 2017, plaintiff's response
to defendants' motion was due on Friday, April 7, 2017.
ECF No. 24. Though plaintiff's response was dated April
5, it was not docketed until April 14, 2017. ECF No. 26 at 8.
Plaintiff's response brief will be considered timely
pursuant to the prison mailbox rule, in which a document is
deemed served or filed on the date a prisoner signs the
document and gives it to prison officials for mailing.
See Houston v. Lack, 487 U.S. 266 (1988)
(establishing prison mailbox rule); Campbell v.
Henry, 614 F.3d 1056, 1059 (9th Cir. 2010) (applying the
mailbox rule to both state and federal filings by
incarcerated inmates). The undersigned gives plaintiff's
response brief (ECF No. 26) full consideration.
respect to plaintiff's unsolicited sur-reply, the court
declines consideration. Following receipt of defendants'
reply brief, the motion was deemed submitted for hearing
without oral argument. ECF No. 24. The court did not request
any additional briefing, and will not consider any additional
Dismissal for Failure to ...