Dean v. Gonzales

Filing 67

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 2/7/2013 ORDERING that plaintiff's 54 and 60 motions to compel are DENIED; plaintiff's 55 and 66 motions for appointment of counsel are DENIED; plaintiff's 62 motion that the court dismiss any unexhausted claims without prejudice is DENIED without prejudice; and plaintiff's 65 motion for perspective witnesses at trial is DENIED without prejudice; and RECOMMENDING that plaintiff's 48 motion for default judgment be denied; and defendant Gonzales' 50 motion to dismiss be denied. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALTON E. DEAN,
Plaintiff,

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No. 2:10-cv-1355 MCE JFM (PC)

vs.
KATHRYN M. GONZALES, et al.,
Defendants.

ORDER AND FINDINGS AND
RECOMMENDATIONS

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I. INTRODUCTION
Plaintiff is a state prisoner proceeding pro se with a civil rights action filed

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pursuant to 42 U.S.C. § 1983. Plaintiff’s operative complaint asserts that he has undergone and

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continues to undergo Constitutional violations of his health and medical care; most specifically

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the lack of pain medication that plaintiff received.

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On June 18, 2012, the undersigned screened plaintiff’s fifth amended complaint

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which plaintiff filed on November 28, 2011. The court determined that service was appropriate

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for “Nurse Tanya, Nurse Suzanne and Kathryn Gonzalez.” (Dkt. No. 39.)

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On October 25, 2012, Tanya Neustadt and Suzanne M. Hailey-Currey answered
the operative complaint. (See Dkt. No. 49.) Defendant Kathryn Gonzales filed a motion to
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dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) also on October 25, 2012. On

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November 2, 2012, the court issued a scheduling order whereby discovery is set to close on

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February 15, 2013 and dispositive motions are currently due by May 10, 2013. (See Dkt. No.

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51.)

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Before the court are the following motions: (1) plaintiff’s motion for default

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judgment against all three defendants (See Dkt. No. 48.); (2) defendant Gonzales’ motion to

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dismiss (See Dkt. No. 50.); (3) plaintiff’s first motion to compel discovery (See Dkt. No. 54.);

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(4) plaintiff’s motions for the appointment of counsel (See Dkt. Nos. 55 & 66.); (5) plaintiff’s

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second motion to compel (Dkt. No. 60.); (6) plaintiff’s motion that the court dismiss any

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unexhausted claims without prejudice (Dkt. No. 62.); and (7) plaintiff’s motion for perspective

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witnesses at trial (Dkt. No. 65.) For the following reasons, it will be recommended that

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plaintiff’s motion for default judgment and Gonzales’ motion to dismiss be denied. Furthermore,

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plaintiff’s two motions to compel discovery and two motions for the appointment of counsel will

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be denied. Plaintiff’s motion that the court dismiss any unexhausted claims without prejudice

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and his motion for perspective witnesses at trial will be denied without prejudice.

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II. PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
On September 12, 2012, plaintiff filed a motion for default judgment. (See Dkt.

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No. 48.) Obtaining a default judgment in federal court is a two-step process. See Symantec

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Corp. v. 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); Eitel v. McCool, 782 F.2d 1470, 1471 (9th

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Cir. 1986) (“Eitel apparently fails to understand the two-step process required by Rule 55.”).

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First, the party seeking such a judgment must obtain an entry of default. This step is governed

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by Federal Rule of Civil Procedure 55(a) which provides as follows:

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Entering a Default. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.
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Second, after default is entered, the party seeking default judgment may request entry of such

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judgment in one of two ways. See FED. R. CIV. P. 55(b). The party may request entry of default

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judgment by the Clerk “[i]f the plaintiff’s claim is for a sum certain or a sum that can be made by

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computation.” FED. R. CIV. P. 55(b)(1). “In all other cases, the party must apply to the court for

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a default judgment.” FED. R. CIV. P. 55(b)(2).

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As there is a two-step process for obtaining a default judgment, courts deny

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motions for default judgment where default has not been previously entered. See Leubner v.

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County of San Joaquin, Civ. No. 08-0853, 2012 WL 530192, at *1 (E.D. Cal. Feb. 17, 2012)

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(citing Marty v. Green, Civ. No. 11-1823, 2011 WL 320303, at *3 (E.D. Cal. Jan. 28, 2011);

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Norman v. Small, Civ. No. 09-2233, 2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010); Bach v.

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Mason, 190 F.R.D. 567, 574 (D. Idaho 1999)), report and recommendation adopted by, 2012 WL

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895430 (E.D. Cal. Mar. 15, 2012). In this case, plaintiff did not obtain a clerk’s entry of default

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against the defendants. Plaintiff’s request for entry of default was denied by the clerk on June

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27, 2012 as the defendants had not yet been served. (See Dkt. No. 41.) Accordingly, as default

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was not entered against the defendants, plaintiff’s motion for default judgment should be denied.

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III. DEFENDANT GONZALES’ MOTION TO DISMISS

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A. Standard for Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for motions to dismiss for

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failing to state a claim upon which relief can be granted. In considering a motion to dismiss, the

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court must accept as true the allegations of the complaint in question. See Erickson v. Pardus,

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551 U.S. 89, 93-94 (2007). In addition, the court must construe the pleading in the light most

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favorable to the party opposing the motion and resolve all doubts in the pleader’s favor. See

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Jenkins v. McKeithen, 395 U.S. 495, 421 (1969). Moreover, pro se pleadings are held to a less

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stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520

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(1972). A motion to dismiss for failure to state a claim should not be granted unless it appears

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beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle
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him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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B. Deliberate Indifference Standard

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Plaintiff’s operative complaint asserts that his Constitutional rights were violated

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when the defendants were deliberately indifferent to his serious medical needs. Deliberate

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indifference to serious medical needs violates the Eighth Amendment’s prescription against cruel

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and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104-105 (1976); Jett v. Penner,

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439 F.3d 1091, 1096 (9th Cir. 2006). “In the Ninth Circuit, the test for deliberate indifference

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consists of two parts.” Jett, 439 F.3d at 1096. First, the plaintiff must show a serious medical

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need by demonstrating that failure to treat a prisoner’s condition could result in further

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significant injury or the unnecessary and wanton infliction of pain. See id. “Second, the

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plaintiff must show the defendant’s response to the need was deliberately indifferent.” Id. A

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prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk

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of serious harm and disregards that risk by failing to take reasonable steps to abate it. See

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Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words, the second prong is satisfied by

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the plaintiff showing “(a) a purposeful act or failure to respond to a prisoner’s pain or possible

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medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096.

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Prison officials demonstrate deliberate indifference when they are aware of the

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patient’s condition but “deny, delay, or intentionally interfere with medical treatment.” Id. “An

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Eighth Amendment claimant need not show that a prison official acted or failed to act believing

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that harm actually would befall an inmate; it is enough that the official acted or failed to act

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despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842.

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C. Analysis of Motion to Dismiss

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Plaintiff alleges in his operative complaint that he “has a constitutional right to

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health and medical care even after informing Kathryn M. Gonzales he had a grand mal seizure

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and needed pain medication to heal his wounds.” (Dkt. No. 34 at p. 19.) Defendant Gonzales

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asserts in her motion to dismiss that the operative complaint does not allege what she did or did
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not do that constituted deliberate indifference. Specifically, she argues that

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Plaintiff’s Fifth Amended Complaint fails to state a claim against
Gonzales. There are no factual allegations showing that Gonzales
personally participated in depriving plaintiff of a constitutional
right. There are no factual allegations suggesting that she was
deliberately indifferent to plaintiff’s medical needs. There are no
factual allegations at all regarding anything that Gonzales did or
did not do.

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(Dkt. No. 50 at p. 4.) Gonzales’ assertions notwithstanding, plaintiff does allege in the operative

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complaint what Gonzales did or did not do that constituted deliberate indifference. By way of

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example only, plaintiff alleges that “defendants knowingly, maliciously and sadistically inflicted

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physical, emotional, and mental abuse upon plaintiff when they denied him full and equal health

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and medical care by deprivation of his necessary leg bags, catheters and supplies after many

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request for his Tylenol w/ Codiene when plaintiff’s usual medication for his pain relief is

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Oxicodone or Vicodan. No seizure medication was provided.” (Dkt. No. 34 at p. 10.) The court

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liberally construes plaintiff’s complaint as he is pursuing this action pro se. See Haines, 404

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U.S. at 520; Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (“[W]e have a duty . . . to

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construe pro se pleadings liberally.”). Plaintiff specifically alleges in his complaint that

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Gonzales was aware that he had a seizure and needed pain medication.

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complaint, he asserts that “defendants” denied him health care and medication he required.

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Defendant Gonzales is considered one of these “defendants.” Thus, liberally construed,

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plaintiff’s operative complaint does allege what Gonzales did or did not do that constituted

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deliberate indifference. Accordingly, Gonzales’ motion to dismiss should be denied.

Later on in the

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IV. PLAINTIFF’S FIRST MOTION TO COMPEL DISCOVERY

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On November 8, 2012, plaintiff filed his first motion to compel discovery. (See

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Dkt. No. 54.) Defendants filed an opposition to this first motion to compel discovery. (See Dkt.

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No. 59.) They argue that the motion to compel is premature because plaintiff never served

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discovery on defendants. A review of the record indicates that plaintiff first propounded the

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interrogatories he requests the court compel defendants to respond to on or about September 11,
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2011, before any defendant had entered an appearance in this case. The record suggests that

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plaintiff did not serve these interrogatories on defendants, but instead sent them only to the court.

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(See Dkt. No. 54 at p. 19 (indicating that interrogatories were only served on the court on

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September 11, 2011).) This is improper. See Fed. R. Civ. P. 33(a) (“a party may serve on any

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other party no more than 25 written interrogatories; see also Dkt. No. 51 at p. 5 (“Discovery

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requests shall be served by the party seeking discovery on all parties to the action. Discovery

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requests shall not be filed with the court except when required by Local Rules 250.1, 250.2,

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250.3 and 250.4.”);

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It appears from the record that plaintiff did not serve the interrogatories on

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defendants until November 4, 2012, but even then only as an attachment to his first motion to

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compel. This is only four days prior to when plaintiff’s first motion to compel was entered and

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filed on the docket. Thus, plaintiff’s first motion to compel discovery was premature as

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defendants would not have had sufficient time to respond to plaintiff’s discovery request by

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November 8, 2012, even if plaintiff had served it on defendants rather then as an attachment to a

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motion to compel. See FED. R. CIV. P. 33(b)(2) (“The responding party must serve its answers

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and any objections within 30 days after being served with interrogatories.”). Accordingly,

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plaintiff’s November 8, 2012 motion to compel discovery will be denied.

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V. PLAINTIFF’S SECOND MOTION TO COMPEL DISCOVERY
Plaintiff filed a document on December 3, 2012 titled “Counter Motion to Compel

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Defendants to Produce Discovery.” (See Dkt. No. 60.) The motion fails to indicate what

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discovery requests had been served on defendants and which requests plaintiff was seeking to

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have the court compel defendants to respond to. Accordingly, it too will be denied.

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VI. MOTIONS TO APPOINT COUNSEL
Plaintiff has requested the appointment of counsel. (See Dkt. Nos. 55 & 66.)

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The United States Supreme Court has ruled that district courts lack authority to require counsel

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to represent indigent prisoners in § 1983 cases. See Mallard v. United States Dist. Court, 490
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U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015,

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1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the

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present case, the court does not find the required exceptional circumstances. Plaintiff’s request

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for the appointment of counsel will therefore be denied.

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VII. MOTION THAT COURT DISMISS ANY UNEXHAUSTED CLAIMS

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On December 14, 2012, plaintiff filed a motion requesting “that the court dismiss

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any unexhausted claims without prejudice.” (Dkt. No. 62.) None of the defendants have moved

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to dismiss any claims due to a lack of exhaustion nor has plaintiff indicated which specific

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claims he wishes dismissed without prejudice in his motion. Accordingly, plaintiff’s motion that

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the court dismiss any unexhausted claims without prejudice will be denied without prejudice.

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VIII. MOTION FOR PERSPECTIVE WITNESSES AT TRIAL

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On December 21, 2012, plaintiff filed a motion for the attendance of perspective

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witnesses at trial. While it is not clear what plaintiff intends by this motion, it appears that the

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procedure for obtaining witnesses at trial is described in the scheduling order of the court dated

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November 2, 2012. Pursuant to that order plaintiff’s motion is premature (as well as unclear).

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Accordingly, plaintiff’s motion for perspective witnesses will be denied without prejudice.

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IX. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions to compel (Dkt. Nos. 54 & 60.) are DENIED;

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2. Plaintiff’s motions for the appointment of counsel (Dkt. Nos. 55 & 66.) are

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DENIED;
3. Plaintiff’s motion that the court dismiss any unexhausted claims without
prejudice (Dkt. No. 62.) is DENIED WITHOUT PREJUDICE; and
4. Plaintiff’s motion for perspective witnesses at trial (Dkt. No. 62.) is DENIED
WITHOUT PREJUDICE.
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Furthermore, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for default judgment (Dkt. No. 48.) be DENIED; and

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2. Defendant Gonzales’ motion to dismiss (Dkt. No. 50.) be DENIED.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 7, 2013.

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dean1355.dj

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