Opinion
No. 2: 16-cv-2651 KJN P
02-01-2018
RODERICK OLAF FONSECA, Plaintiff, v. MARION E. SPEARMAN, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 22.) For the reasons stated herein, the undersigned recommends that defendant's motion be granted.
This action proceeds on the second amended complaint as to defendant High Desert State Prison ("HDSP") Warden Spearman. (ECF No. 13.) Plaintiff alleges that defendant Spearman denied his request to change his name for religious reasons. Plaintiff seeks injunctive relief only.
Defendant argues that the instant action is moot because plaintiff is no longer housed at HDSP. Court records indicate that plaintiff is now housed at R. J. Donovan Correctional Facility ("RJDCF"). Because plaintiff is no longer housed at HDSP, defendant argues that he (defendant Warden Spearman) no longer has the authority to authorize a name change for plaintiff. ////
The procedures for prisoners requesting name changes are contained in Cal. Code Regs. tit. 15, § 3294.5 These procedures provide that all inmate requests for a legal name change shall initially be reviewed by the Warden, who shall either recommend approval for a legal name change or deny the request for a legal name change. See § 3294.5(a). If the request is denied, the Warden shall respond to the inmate in writing with the reasons for the denial. See § 3294.5(b). If the Warden finds reasons that exist to warrant an inmate's request for a name change, then the Warden shall forward a request to the Institutions Division Regional Administrator, along with a memorandum listing the reasons for recommending approval. See § 3294.5(c). If the Regional Administrator agrees with the recommendation to approve the request for a name change of an inmate, a letter shall be forwarded to the court explaining why the Department is recommending approval for a name change. See § 3294.5(e). If the Regional Administrator denies the request for a name change, a letter shall be forwarded to the inmate with the reasons for the denial. See § 3294.5(f).
Pursuant to the regulations discussed above, were the court to find in plaintiff's favor, the order for injunctive relief would be directed to the RJDCF Warden. However, the court does not have jurisdiction over non-parties. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Because the RJDCF Warden is not a party, defendant's motion to dismiss should be granted.
Finally, on January 22, 2018, plaintiff filed a sur-reply to defendant's reply to his opposition to the motion to dismiss. (ECF No. 32.) On January 25, 2018, defendant filed a motion to strike plaintiff's sur-reply on grounds that it is not authorized by the Eastern District Local Rules or the Federal Rules of Civil Procedure. (ECF No. 33.) Defendants are correct that sur-replies are not authorized pleadings. See E.D. Cal. R. 230(l) (when a motion is filed, the non-moving party may file an opposition and the moving party may file a reply to the opposition); Harris v. Kennedy, 2018 WL 347798 at *1 (E.D. Cal. 2018).
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to strike (ECF No. 33) is granted;
2. The Clerk of the Court shall appoint a district judge to this action; and
IT IS HEREBY RECOMMENDED that defendant's motion to dismiss (ECF No. 22) be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: February 1, 2018
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE Fon2651.mtd