David v. Gutierrrez et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion for Default Judgment and Motions for a Court Order be DENIED re Docs. 28 , 29 , 38 , 39 , 40 , signed by Magistrate Judge Barbara A. McAuliffe on 8/2/2012. Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID M. DAVID,
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Plaintiff,
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CASE NO. 1:11-cv-00061-LJO-BAM PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENYING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT AND
MOTIONS FOR A COURT ORDER
v.
A. GUTIERREZ, et al.,
(ECF Nos. 28, 29, 38, 39, 40)
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Defendants.
FOURTEEN DAY DEADLINE
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I.
Procedural History
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Plaintiff David M. David (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On May 10, 2011, Plaintiff’s
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unsigned complaint was stricken from the record, and Plaintiff was ordered to file a complaint that
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complied with Federal Rules of Civil Procedure 8 and 18. (ECF No. 18.) Plaintiff filed a complaint
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on June 13, 2011.1 (ECF No. 23.) On December 12, 2011, Plaintiff filed a motion for default
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judgment. (ECF No. 28.) On December 19, 2011, Plaintiff filed a notice of destruction of legal
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materials. On May 29, 2012, Plaintiff’s complaint was stricken from the record for failing to comply
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with Federal Rules of Civil Procedure 8 and 18. (ECF No. 34.) On July 9, 2012, Plaintiff filed three
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motions for a court order directing prison officials at Mule Creek State Prison (“MCSP”) to return
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his legal and religious materials. (ECF No. 38, 39, 40.) On July 12, 2012, Plaintiff’s motion for an
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The Court notes that the complaint was incorrectly docketed as a first amended complaint.
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extension of time was granted and Plaintiff’s was given thirty days in which to file a complaint.
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(ECF No. 41.)
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Plaintiff has not filed a complaint and, once a complaint is filed the Court must screen it to
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determine whether it states a claim upon which relief could be granted. As such, none of the
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defendants have been served or have appeared in this case. With this procedural background in
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mind, the Court will address Plaintiff’s pending motions.
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II.
Motion for Default Judgment
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Plaintiff seeks default judgment because prison officials at MCSP confiscated his property.
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Pursuant to Federal Rules of Civil Procedure 55, obtaining a default judgment is a two step process.
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Yue v. Storage Technology Corp., No. 3:07-cv-05850, 2008 WL 361142, *2 (N.D.Cal. Feb, 11,
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2008). Entry of default is appropriate as to any party against whom a judgment for affirmative relief
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is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil
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Procedure and where that fact is made to appear by affidavit or otherwise. Fed. R. Civ. P. 55(a).
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After entry of default, the plaintiff can seek entry of default judgment. Fed. R. Civ. P. 55(b)(1) and
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(2). “Default judgments are generally disfavored, and whenever it is reasonably possible, cases
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should be decided upon their merits.” In re Hammer, 940 F.2d 524, 525 (9th Cir. 1991) (internal
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punctuation and citations omitted). Plaintiff may not receive an entry of default judgment, because
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there has been no entry of default against any defendant in this action. No complaint has been filed
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or served on any defendant. Default cannot be entered as a matter of law.
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III.
Motions for Court Orders
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In the December 12, 2011 motion, Plaintiff alleges that on December 1, 2011, property from
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his cell was confiscated by prison officials. Plaintiff seeks an order returning all of his property, an
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order directing prison officials to cease retaliating against him, an order that his property could not
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be confiscated in the future, and $100,000. (ECF No. 28.) Plaintiff’s notice of destruction of legal
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materials requests a court order directing prison officials to return his legal materials, place Plaintiff
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on single cell status, and direct officials to cease and desist from annoying, harassing, or intimidating
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Plaintiff. (ECF No. 29.) In the motion for a court order seeking return of legal materials seized on
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May 22, 2012, Plaintiff states that the materials were returned so the request is moot. (ECF No. 38.)
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Plaintiff is seeking a court order directing the return of legal materials seized on December 1, 2011,
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and March 5, 2012. (ECF No. 39.) Plaintiff states that the legal materials he seeks are evidence in
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this and four other federal proceedings that are pending. Plaintiff claims on April 24, 2012, prison
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officials at MCSP confiscated legal and religious books from his cell and he seeks an order directing
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they be returned. (ECF No. 40.)
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Plaintiff is requesting injunctive relief in the form of a court order. Federal courts are courts
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of limited jurisdiction and in considering a request for injunctive relief, the Court is bound by the
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requirement that as a preliminary matter, it have before it an actual case or controversy. City of Los
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Angeles v. Lyons, 103 S. Ct. 1660, 1665 (1983); Valley Forge Christian Coll. v. Ams. United for
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Separation of Church and State, Inc., 102 S .Ct. 752, 757-58 (1982). If the Court does not have an
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actual case or controversy before it, it has no power to hear the matter in question. Id. Requests for
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prospective relief are further limited by 18 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform
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Act (“PLRA”), which requires that the Court find the “relief [sought] is narrowly drawn, extends no
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further than necessary to correct the violation of the Federal right, and is the least intrusive means
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necessary to correct the violation of the Federal right.”
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Plaintiff has not filed a complaint that complies with the Federal Rules of Civil Procedure
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and currently no complaint is filed in this action. Until such time as Plaintiff files a complaint, the
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Court is unable to determine if it has jurisdiction to award the relief requested. Plaintiff is currently
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incarcerated at MCSP. On January 12, 2011, this action was transferred to the Fresno Division of
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the Eastern District because Plaintiff was alleging violations of his rights while he was incarcerated
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at Coalinga State Prison (“Coalinga”). (ECF No. 4.) Generally, when an inmate seeks injunctive
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or declaratory relief concerning the prison where he is incarcerated, his claims for such relief become
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moot when he is no longer subjected to those conditions. Nelson v. Heiss, 271 F.3d 891, 897 (9th
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Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995); Johnson v. Moore, 948 F.2d 517,
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519 (9th Cir. 1991).
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Also, Plaintiff’s allegations of past conduct by prison officials at Coalinga would not confer
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jurisdiction on this Court to direct prison officials at MCSP to return his property. 18 U.S.C. §
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3626(a)(1)(A); Summers v. Earth Island Institute, 129 S. Ct. 1142, 1149 (2009); Steel Co. v. Citizens
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for a Better Env’t, 523 U.S. 83, 103-04 (1998); City of Los Angeles v. Lyons, 103 S. Ct. 1660, 1665
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(1983); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010).
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Finally, until such time as Plaintiff files a complaint, the Court is unable to determine if the
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relief he seeks would correct the Federal right which is at issue in this action. 18 U.S.C. §
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3626(a)(1)(A)
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Accordingly, the Court cannot determine if this action confers jurisdiction to issue the
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requested orders or if the relief requested is available in this action. Plaintiff’s motions seeking a
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court order should be denied, without prejudice.
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IV.
Conclusion and Recommendation.
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Based on the foregoing, IT IS HEREBY RECOMMENDED that:
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Plaintiff’s motion for default judgment (ECF No. 28) be denied;
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Plaintiff’s request for a court order in the notice of destruction of legal materials
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(ECF No. 29) be denied, without prejudice;
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3.
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Plaintiff’s motion for a court order directing the return of his legal materials (ECF
No. 38) be DENIED as moot;
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4.
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Plaintiff’s motion for a court order directing the return of his legal materials (ECF
No. 39) be DENIED, without prejudice; and
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5.
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Plaintiff’s motion for a court order directing the return of his law and religious books
(ECF No. 40) be DENIED, without prejudice.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)
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days after being served with these findings and recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
10c20k
August 2, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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