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Middleton v. Omely Telecom Corp.

United States District Court, D. Nevada

November 16, 2017

Ervin Middleton, Plaintiff
v.
Omely Telecom Corp. aka Pro Tax & Accounting, Defendant

          ORDER DENYING WRIT RELIEF AND RECONSIDERATION [ECF 23, 24, 30, 32]

         Plaintiff Ervin Middleton brought this action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), claiming that defendant Omely Telecom Corp. violated the TCPA with dozens of automatic-dialing phone calls to his home.[1] When Middleton later filed an amended complaint without first obtaining the required leave of court-adding a second plaintiff, civil-rights claims, and ten new defendants including a mayor, state and federal judges, banks, and the Internal Revenue Service-Magistrate Judge George Foley, Jr., struck the rogue pleading without prejudice to Middleton's ability to file a proper motion for leave.[2]

         Middleton has since filed a flurry of documents challenging that decision, including a “writ of error quae coram nobis residant, ” a petition for writ of habeas corpus, and a demand for habeas corpus hearing.[3] Central to all of them is his belief that magistrate judges lack the authority to issue orders.

         I liberally construe Middleton's writ of error quae coram nobis residant as a timely motion to reconsider the magistrate judge's order striking the amended complaint, and I deny it. I also deny Middleton's habeas requests because the fact that he is not an convicted person in custody makes habeas relief unavailable to him. And to get this case back on track, I order the service of the original summons and complaint on Omely Telecom Corp. by December 29, 2017.

         Analysis

         A. Magistrate Judges have authority to issue rulings on pretrial issues.

         I first address the theory at the center of Middleton's recent motions: that magistrate judges lack the power to issue orders. This notion is false. The Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A) vests power in, and establishes the jurisdiction of, federal magistrate judges (like Magistrate Judge Foley) “to hear and determine any pretrial matter pending before the court, except” certain matters not implicated in this case.[4] The local rules of this district further bolster that power, reiterating that “A magistrate judge may hear and finally determine any pretrial matter not specifically enumerated as an exception” to the statute.[5]

         Middleton operates under the misconception that magistrate judges can issue no rulings unless and until the parties have consented to send a case to the magistrate judge, and he makes it clear that he will not give that consent here.[6] But Middleton relies on a different part of the Federal Magistrates Act than the one that authorizes Judge Foley to issue rulings on pretrial matters in this case. That provision-28 U.S.C. § 636(c)-requires the consent of the parties for a magistrate judge to conduct the actual trial and enter final judgment, or fully and finally decide other dispositive issues that § 636(b)(1)(A) does not give magistrate judges the power to address. Consent is not required for a magistrate judge to resolve the pretrial issues contemplated by § 636(b)(1)(A), like screening claims, striking fugitive pleadings and improperly issued summonses, and resolving discovery-related issues. If Middleton disagrees with any pretrial order issued by the magistrate judge in this case, his remedy is to move for reconsideration of that order under the procedures established in Local Rule IB 3-1(a) and show “that the magistrate judge's order is clearly erroneous or contrary to law.”[7]

B. Writ Relief is Not Available.

         I reiterate that the proper vehicle for seeking district-judge review of one of the magistrate judge's pretrial rulings in this case is a motion for reconsideration. That review cannot be obtained by a petition for writ of habeas corpus. Only convicted persons “in custody” can seek a writ of habeas corpus[8] because this extraordinary writ is “a remedy for severe restraints on individual liberty.”[9] Middleton is not in custody. And his suggestion that Magistrate Judge Foley placed him in “constructive custody”[10] by striking his amended complaint without prejudice does not come close to establishing the type of “severe” and “immediate” restraint on liberty that habeas relief requires.[11] I thus deny Middleton's petition for writ of habeas corpus[12]because such an extraordinary writ is not available to Middleton either for the purpose he seeks it or in this case at all.[13] And because I am denying that petition, I also deny as moot his request for oral argument on that petition.[14]

         A writ of error quae coram nobis resident is also not the proper vehicle for challenging Judge Foley's order. This rare and extraordinary writ is available only to a convicted person who wants to attack his criminal conviction but can no longer pursue habeas relief because he has been released from custody.[15] It is not an available tool for seeking review of a magistrate judge's order striking a fugitive pleading in a civil lawsuit like this one. So I deny Middleton a writ of coram nobis.[16] But to the extent that this writ challenges Magistrate Judge Foley's order striking the amended complaint, I liberally construe it as a motion for reconsideration of that order under 28 U.S.C. § 636(b)(1)(A) and LR IB 3-1(a).

         C. The Motion for Reconsideration is Denied.

         A magistrate judge's pretrial ruling may be modified or set aside if it is “clearly erroneous or contrary to law.”[17] Factual determinations are reviewed for clear error, and legal conclusions are reviewed to determine whether they are contrary to law.

         Middleton takes issue with the magistrate judge's conclusion that his amendment was not permitted by Rule 15(a).[18] He argues that his timing was right under either (a)(1)(A) or (B).[19]But the time for amendment as of right had not yet started to run under either provision. The rule creates two 21-day windows for amendment as of right: (A) the 21-day period after service; and (B) the 21-day period after an answer or certain motions.[20] Because Middleton filed his amended complaint before he served the original one and before any answer or motion was filed, his amendment-as-of-right time had not yet started to run under either provision. So I cannot conclude that the magistrate judge's conclusion that his amended complaint was not authorized by Rule 15 was clearly erroneous or contrary to law.

         Plaintiff's in forma pauperis (IFP) status gives this case an additional wrinkle and a separate reason to affirm the magistrate judge's order striking the amended complaint and summonses. When a plaintiff pursues litigation without having to pay the filing fee, his claims are subject to pre-service screening requirements.[21] Plaintiff's attempted amended complaint adds Ann Gates Middleton as a second plaintiff. That new plaintiff must either pay the filing fee or file her own application to proceed IFP.[22] “Although only one filing fee needs to be paid per case, if multiple plaintiffs seek to proceed in ...


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