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Hoffman v. Lassen County

United States District Court, E.D. California

July 26, 2017

KASEY F. HOFFMAN, Plaintiff,
v.
LASSEN COUNTY, et al., Defendants.

          FINDINGS AND RECCOMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. RELEVANT FACTUAL BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         On May 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. Id.

         II. ISSUES PRESENTED

         As a 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.

         Substantively, 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.

         III. ANALYSIS

         A. Untimely Response and Unsolicited Sur-Reply

         The 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.

         With 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 briefing.

         B. Dismissal for Failure to ...


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