Opinion
Aaron Raiser, Plaintiff, Pro se, Woodland Hills, CA.
For Los Angeles County Sheriff, Defendant: Rina Michelle Mathevosian, Nelson and Fulton, Los Angeles, CA.
THIRD REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RALPH ZAREFSKY, UNITED STATES MAGISTRATE JUDGE.
Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Third Report and Recommendation to the Honorable R. Gary Klausner, United States District Judge. On November 10, 2014, this matter came on for hearing on the motion by the pro se plaintiff, Aaron Raiser, " to Declare the Local Rules and General Orders Denying Pro Se Litigants ECF Access Unconstitutional" (ECF 41). No appearances were made. For the following reasons, the Court should deny Plaintiff's motion.
I .
INTRODUCTION
Plaintiff lives nomadically in his car. His lawsuit challenges an alleged policy of the sole remaining defendant, the Los Angeles County Sheriff (the County). During the now-closed discovery phase, Plaintiff states, he missed his deadline for filing a Joint Stipulation encompassing a discovery dispute because he is pro se and, as such under Civil Local Rule 5-4.2(a), he could not file it electronically, as could (and usually must) a litigant represented by counsel. He says the Rule is unconstitutional. For three reasons, the Court should reject this argument and deny the motion.
II .
NO REAL PARTY IN INTEREST TO DEFEND THE RULE
First, there is no pleading challenging the Local Rule, and no real party in interest before the Court to oppose Plaintiff's motion. A party may not simply bring a motion seeking to declare a rule unconstitutional, when the issue has not been joined in the pleadings. And the only remaining defendant, the County, is clearly not a proper party to such a motion, as it has no control over the Court's rules. Cf. Mothershed v. Justices of the Arizona Supreme Court, 410 F.3d 602 (9th Cir. 2005) (noting that Arizona Supreme Court is the real party in interest to a challenge to the rules promulgated by that court).
III .
NO CLAIM STATED, UNDER EQUAL PROTECTION CLAUSE OR OTHERWISE
Second, Plaintiff cites no authority whatsoever and states no cognizable claim. His factual narrative in support of his challenge, quoted below, suggests that the rule may have negative consequences for pro se litigants. But not every imperfection in a rule renders that rule unconstitutional. Presumably Plaintiff means to argue that the Rule violates the Fifth Amendment's implied equal-protection requirement for federal government actors, akin to the Fourteenth Amendment's Equal Protection Clause. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (Fifth Amendment's Due Process Clause implicitly includes Equal Protection guarantee as in Fourteenth Amendment). Such a claim requires the plaintiff to allege and prove an unlawful intent to discriminate against him for an invalid reason. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). Heightened court scrutiny may apply where the government's acts discriminate against a " suspect class" of persons or infringe upon a fundamental right. See Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Most other classifications, however, need only be rationally related to a legitimate government purpose to withstand an equal protection challenge. See City of Cleburne, 473 U.S. at 400; Robinson v. Marshall, 66 F.3d 249, 251 (9th Cir. 1995).
If Plaintiff intends such a claim, it is infirm, at least on this record. Pro se litigants have never been held to be a " suspect class." See Coulter v. Studeny, No. CIV.A. 12-338, 2012 WL 2829948 (W.D. Pa. July 10, 2012), at *1-*2 (upholding court rule assigning all cases filed by a given pro se litigant to the same judges) (collecting cases); Jimenez v. Martz, No. 11-cv-00948-PAB-CBS (D. Colo. Feb. 23, 2012), at *7 (similar); Litmon v. Brown, No. C-10-3894 EMC (N.D. Cal. Jan. 25, 2012), at *2 (quoting Larson v. Goodman, No. 09-3600 PAM/AJB (D. Minn. 2010). And Plaintiff fails to make the difficult showing that the Rule is not rationally related to any legitimate purpose. Perhaps the drafters of the Rule intended to avoid burdening those pro se litigants without routine computer access, or computer skills, with an impossible task. Perhaps the drafters feared that pro se litigants might make more filing errors (or abusive filings) than would litigants represented by licensed attorneys. E-filing is still in its infancy, and perhaps the drafters wished to iron out the bugs before considering extending it. Imperfections aside, the Rule is at least rationally related to one or more legitimate government purposes.
IV .
LACK OF STANDING DUE TO UNRIPENESS
The third shortcoming is that, because Plaintiff never filed his Joint Stipulation, his current motion is unripe. Here is how Plaintiff describes his plight:
On or about June 30, 2014 Plaintiff was ready to email per L.R. 37-2 his proposed Joint Statement [ sic ] for a discovery dispute. However, Plaintiff then checked the local rules which said they [Defendants] had to be given 7 days to add their own material and return it to Plaintiff prior to him being able to file it with the court. However, 7 days would put the time at July 7, 2014 which was the discovery cutoff.
The court however closes to Plaintiff at around 4:00 or 4:30 pm. Thus, opposing counsel would or could easily, aware of the rules, not return the additions to the Joint Statement until after 5pm [on July 7], or after 4:00 pm etc. when Plaintiff could not get it to the court on time prior to the clerk's office closing.
PLAINTIFF HAS NOW LOST THE ENTIRE CASE AS A RESULT OF NOT HAVING ECF ACCESS.
Had Plaintiff had ECF access, he could have filed the Joint Statement electronically up to an[d] including 11:59 pm on July 7, 2014. Thus, even had opposing counsel gotten to Plaintiff her additions after 5pm, it would not have hindered Plaintiff's case.
Mem. at 2-3.
This is unpersuasive for at least three reasons. First and foremost, the principal reason why Plaintiff was pressed for time as the discovery cutoff approached was his own delay of several months in propounding discovery. He did not propound discovery promptly after any defendant filed any " first paper, " see July 29, 2013 Order Re Further Proceedings (ECF 5) at 3, an event which occurred when the County answered on December 16, 2013 (ECF 15). Nor did Plaintiff begin propounding discovery promptly after the Court issued its January 6, 2014 Scheduling Order (ECF 20). It was not until March 24, 2014 that he first propounded discovery, over three months after he first could have done so.
The second shortcoming relates closely to the first. Plaintiff was already effectively doomed, on June 30, to being tardy, and thus the ECF filing restrictions he challenges did not make a material difference. The January 6 Scheduling Order clearly explained, as follows, that motions challenging discovery responses must be filed well in advance of the date given as the " discovery cutoff":
In budgeting their allotted time, the parties should allow for time required for resolving discovery disputes, including, if necessary, resort to motion practice, time required for the Court to consider and rule upon any such discovery motions, and reasonable time thereafter for compliance with any rulings by the Court compelling further discovery responses. The Court will look with disfavor upon motions to extend deadlines where greater alacrity in pursuit of discovery would have made such motions unnecessary.
Third and most importantly, Plaintiff lacks standing. He suffered no actual injury due to the Rule because he never filed his Joint Stipulation. A party invoking federal jurisdiction has the burden of establishing that it has satisfied the " case-or-controversy" requirement of Article III of the Constitution. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An " essential and unchanging" " core component" of that requirement is standing. Id. Standing requires a showing of three things:
First, the plaintiff must have suffered an " injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized, and (b) " actual or imminent, not 'conjectural' or 'hypothetical[.]'" Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be " likely, " as opposed to merely " speculative, " that the injury will be redressed by a favorable decision.
Id. (several citations and one footnote omitted). Here, Plaintiff's injury is conjectural or hypothetical, not concrete. He argues, in effect, " Well, I assume I would have been injured by the Rule had I filed my motion, so I didn't bother trying." He simply assumed that counsel would take the full seven days allowed to her under the Rules; that she would deliberately return her portion of the Joint Stipulation to Plaintiff only once it was too late for him to file it by the discovery cutoff (although, as noted above, he was already tardy as a practical matter); and finally, that the Court would deny Plaintiff's motion as untimely. Perhaps those assumptions would have proven correct. But Plaintiff may not simply assume so if he wishes to challenge the Rule. To present a ripe challenge with a concrete injury, Plaintiff must have carried on, tried his best and, perhaps or perhaps not, suffered the setback(s) that now have not occurred at all . Because Plaintiff lacks standing, the Court lacks jurisdiction to decide his challenge.
V .
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the District Court enter an Order (1) accepting the findings and conclusions in this Third Report and Recommendation and (2) denying Plaintiff's motion (ECF 41).