Warner v. Cate et al

Filing 204

ORDER STRIKING 173 Request for Default Judgment signed by Magistrate Judge Michael J. Seng on 10/10/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EARL WARNER,

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Plaintiff,

CASE NO. 1:12-cv-01146 MJS (PC)
ORDER STRIKING REQUEST
DEFAULT JUDGMENT

FOR

v.
(ECF No. 173)
MATTHEW L. CATE, et al.,
Defendants.

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Plaintiff Earl Warner is a state prisoner proceeding in forma pauperis and with

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appointed counsel in this civil rights action pursuant to 42 U.S.C. § 1983. The action

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proceeds on Plaintiff’s first amended complaint (“FAC”) against Defendants Walker,

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Davis, Prokop, Spralding, and Fellows for failure to protect in violation of the Eighth

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Amendment. (ECF No. 10.) The parties have consented to full magistrate judge

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jurisdiction. (ECF Nos. 5; 140.)

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On January 20, 2017, the Court granted Plaintiff’s motion to appoint counsel (ECF

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No. 143) and appointed Bryan J. Wilson, Daniel C. Hubin, and Teresa A. MacLean to

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represent Plaintiff for the duration of this action. (ECF No. 161.)

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On January 27, 2017, Plaintiff filed, in propria persona, a request for default

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judgment contending that that was an appropriate sanction for Defendants’ alleged

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failure to respond appropriately to discovery requests. (ECF No. 173.) Defendants filed a

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substantive opposition and also argued that the Court should not consider the motion

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because a Plaintiff represented by counsel may not file motions in propria persona

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without court permission. (ECF No. 174.)

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By filing a substantive motion pro se, Plaintiff has engaged in hybrid representation

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without prior authorization. His purported motion will be stricken.

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Consideration of pro se motions in this case would defeat the purpose of

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appointment of counsel and unduly burden the court. A court need not consider pro se

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motions filed by a party who remains represented by counsel. See United States. v. El–

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Alamin, 574 F.3d 915, 923 (8th Cir. 2009); United States v. Hildreth, 485 F.3d 1120,

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1125 (10th Cir. 2007); United States v. Vampire Nation, 451 F.3d 189, 206 n. 17 (3rd Cir.

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2006); Abdullah v. United States, 240 F.3d 683, 686 (8th Cir. 2001); Ennis v. LeFevre,

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560 F.2d 1072 (2d Cir. 1977); Le v. Almager, No. C 08–03293 SBA, 2013 WL 415632

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(N.D. Cal. Jan. 31, 2013); United States v. Hoang Ai Le, No. 2:99–cr–433 WBS, No.

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2:16–cv–1090 WBS AC, 2016 WL 9447193 (E.D. Cal. July 25, 2016). See also see also

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United States v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995) (holding that a criminal

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defendant does not have the right to proceed pro se when represented by counsel).

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For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s pro se
request for default judgment (ECF No. 173) is STRICKEN.

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IT IS SO ORDERED.
Dated:

October 10, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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