Pesqueira #126613 v. Ryan et al

Filing 40

ORDER - IT IS ORDERED The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Default Judgment (Doc. 30 ) and Motion for Temporary Restraining Order (Doc. 36 ), and the Motions are denied. Service on Defendant Sedlar (Doc. 23 ) is quashed, and the service deadline is extended for an additional sixty (60) days from the date of this Order. The Clerk's Entry of Default (Doc. 26 ) is set aside. All other matters in this action remain with the Magistrate Judge for disposition as appropriate.(See document for further details). Signed by Judge David G Campbell on 3/31/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kevin Eric Pesqueira,
Plaintiff,

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ORDER

v.

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No. CV-15-01426-PHX-DGC (ESW)

Charles L. Ryan, et al.,

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Defendants.

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Plaintiff Kevin Eric Pesqueira, who is confined in the Arizona State Prison

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Complex (ASPC)-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983. (Doc. 11.) Before the Court are Plaintiff’s Motion for Default Judgment (Doc.

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30) and Motion for Temporary Restraining Order (Doc. 36).

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The Court will deny the Motions, set aside the Clerk’s Entry of Default against

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Defendant Sedlar, and quash service on Sedlar.

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I.

Background

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In his First Amended Complaint, Plaintiff alleged that he received constitutionally

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deficient medical care after he broke two fingers on his right hand while playing

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basketball at ASPC-Florence. (Doc. 11.) Upon screening under 28 U.S.C. 1915A(a), the

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Court determined that Plaintiff stated a claim against Defendants Nurse Sedlar and Doe

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#1. (Doc. 12.) The Court ordered Sedlar to answer, but did not direct that service be

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made on Doe #1, so that Plaintiff could have an opportunity to amend his pleading to

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identify that individual. (Id.) The Court dismissed the remaining claims and Defendants.

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(Id.)

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On May 11, 2016, the service documents for Sedlar were returned executed, with a

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form indicating that Cathy Vollmer, Vice President of Favorite Healthcare Staffing, had

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accepted service on Sedlar’s behalf. (Doc. 23.) On June 20, 2016, Plaintiff filed an

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Application for Entry of Default against Sedlar (Doc. 24), and the Clerk of Court entered

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default on July 29, 2016 (Doc. 26).

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II.

Motion for Default Judgment

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Plaintiff seeks a default judgment against Sedlar because Sedlar has not answered

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the First Amended Complaint. (Doc. 30.) Plaintiff seeks $100,000 in compensatory

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damages and $200,000 in punitive damages. (Id.)

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The Ninth Circuit has stated that Rule 55 requires a “two-step process,” consisting

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of (1) seeking the clerk’s entry of default and (2) filing a motion for entry of default

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judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); see Symantec Corp. v.

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Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting “the two-step process of

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‘Entering a Default’ and ‘Entering a Default Judgment’”).

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generally disfavored, so courts should attempt to resolve motions for default judgment to

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encourage a decision on the merits. TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691,

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696 (9th Cir. 2001)).

Default judgments are

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Sedlar appears for the limited purpose of responding to Plaintiff’s Motion for

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Default Judgment and argues that the entry of default must be set aside because she was

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never properly served. (Docs. 32, 35.) Specifically, Sedlar contends that she was not

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personally served a copy of the Summons and Complaint, nor was a copy of the

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Summons and Complaint delivered to someone of suitable age and discretion at her

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residence. (Doc. 32 at 2.) Instead, the Summons and Complaint were delivered to

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officers of Sedlar’s previous employer. (Id.) According to Sedlar, she was employed by

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Favorite Healthcare Staffing from August 22, 2012 until July 17, 2014. (Doc. 35.) In

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support of this argument, Sedlar has submitted a sworn affidavit from the Favorite

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Healthcare Staffing Custodian of Records attesting to and confirming these employment

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dates. (Doc. 35-1.)

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Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual may

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be served by (1) “delivering a copy of the summons and of the compliant to the

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individual personally”; (2) “leaving a copy of each at the individual’s dwelling or usual

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place of abode . . .”; or (3) “delivering a copy of each to an agent authorized by

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appointment or by law to receive service of process.” Plaintiff has the burden to establish

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that service was properly effected, see Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir.

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2004), and the Court concludes Plaintiff has failed to meet that burden here. Plaintiff

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failed to deliver a copy of the Summons and Complaint to Sedlar personally or to her

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dwelling or usual place of abode. Further, Plaintiff has not presented evidence that

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Vollmer was authorized by appointment or law to accept service on Sedlar’s behalf.

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Because Sedlar has not been properly served, she cannot be required to answer Plaintiff’s

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First Amended Complaint. Therefore, service upon Sedlar will be quashed, the Clerk’s

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Entry of Default (Doc. 26) will be set aside, and Plaintiff’s Motion for Default will be

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denied.

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III.

Motion for Temporary Restraining Order

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A.

Legal Standard

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“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”

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Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong,

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520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc.,

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555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary

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remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must

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show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable

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harm without an injunction, (3) the balance of equities tips in his favor, and (4) an

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injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only

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show that there are ‘serious questions going to the merits’—a lesser showing than

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likelihood of success on the merits—then a preliminary injunction may still issue if the

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‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter

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factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th

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Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

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Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . .

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must be balanced, so that a stronger showing of one element may offset a weaker

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showing of another.” Lopez, 680 F.3d at 1072.

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Regardless of which standard applies, the movant “has the burden of proof on each

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element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016,

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1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a

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mandatory preliminary injunction, which should not be granted “unless the facts and law

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clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441

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(9th Cir. 1986) (citation omitted).

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The Prison Litigation Reform Act imposes additional requirements on prisoner

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litigants who seek preliminary injunctive relief against prison officials and requires that

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any injunctive relief be narrowly drawn and the least intrusive means necessary to correct

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the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d

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987, 999 (9th Cir. 2000).

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B.

Discussion

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In his Motion, Plaintiff moves the Court to issue an order prohibiting “Corizon

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Medical/Arizona Department of Corrections [ADC]” and Nurse Practitioner Lawrence

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Ende from discontinuing Plaintiff’s Tramadol prescription. (Doc. 36 at 1.) Plaintiff

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alleges that he received Tramadol “for years” but was recently “cut off” and instead

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placed on Naproxen, a medication that Plaintiff claims is ineffective for his medical

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issue. (Id.)

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Plaintiff’s motion fails because Plaintiff is seeking injunctive relief against non-

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parties. A court may issue an injunction against a non-party only where the non-party

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acts in active concert or participation with an enjoined party. Fed. R. Civ. P. 65(d)(2) (a

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preliminary injunction only binds those who receive actual notice of it by personal

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service or are parties, their officers, agents, servants, employees, and attorneys, and

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persons in active concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1984) (“A

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federal court may issue an injunction if it has personal jurisdiction over the parties and

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subject matter jurisdiction over the claim; it may not attempt to determine the rights of

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persons not before the court.”); see also Zenith Radio Corp. v. Hazeltine Research, Inc.,

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395 U.S. 100, 110 (1969). Corizon, ADC, and Ende are not parties to this action, and

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Plaintiff has not made the necessary showing that these non-parties are acting in concert

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with Sedlar, the only named Defendant.

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jurisdiction to issue the injunctive relief that Plaintiff seeks, and his Motion will be

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denied.

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Accordingly, the Court does not have

IT IS ORDERED
(1)

That the reference to the Magistrate Judge is withdrawn as to Plaintiff’s

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Motion for Default Judgment (Doc. 30) and Motion for Temporary Restraining Order

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(Doc. 36), and the Motions are denied.

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(2)

Service on Defendant Sedlar (Doc. 23) is quashed, and the service deadline

is extended for an additional sixty (60) days from the date of this Order.

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(3)

The Clerk’s Entry of Default (Doc. 26) is set aside.

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(4)

All other matters in this action remain with the Magistrate Judge for

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disposition as appropriate.
Dated this 31st day of March, 2017.

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