Grigsby v. Munguia, et al.

Filing 40

ORDER signed by Magistrate Judge Allison Claire on 4/13/2015 DENYING plaintiff's 26 motion for default judgment ; DENYING plaintiff's 27 motion to compel; DENYING plaintiff's 35 request for production of documents; DENYING plaintiff's 37 motion and/or clarification regarding production of documents ; DENYING plaintiff's 38 motion for a discovery conference; and DENYING plaintiff's 34 motion for appointment of counsel. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JONATHAN GRIGSBY,

12
13
14

No. 2:14-cv-0789 GEB AC

Plaintiff,
v.

ORDER

M. MUNGUIA, et al.,

15

Defendants.

16
17

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action filed

18

pursuant to 42 U.S.C. § 1983. The complaint alleges that defendants Munguia, Serrano, Lee,

19

Balque, and Baker used excessive force against plaintiff in violation of plaintiff’s Eighth

20

Amendment rights. ECF No. 1. Pending before the court are: (1) plaintiff’s motion for default

21

judgment, ECF No. 26; (2) plaintiff’s motion to compel, ECF No. 27; (3) plaintiff’s request for

22

production of documents, ECF No. 35; (4) plaintiff’s motion and/or clarification regarding

23

request for production of documents, ECF No. 37; (5) plaintiff’s motion for a discovery

24

conference, ECF No. 38; and (6) plaintiff’s motion to appoint counsel, ECF No. 34.

25

I.

Motion for Default Judgment

26

On December 15, 2014, plaintiff filed a motion entitled “Motion for Summary Judgment

27

Default.” ECF No. 26. Upon reviewing plaintiff’s motion, the court finds that the motion is in

28

content a motion for a default judgment rather than summary judgment, and will therefore
1

1

analyze it pursuant to the rules governing default judgments.1 Default may be entered by the

2

clerk when a defendant fails to plead or otherwise defend. Fed. R. Civ. P. 55(a). However, a

3

defendant’s default does not automatically entitle the plaintiff to a court-ordered judgment.

4

Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986). Default judgments are ordinarily

5

disfavored, but may be granted in the court’s discretion under certain circumstances not present

6

here. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The undersigned need not

7

consider the Eitel factors because there has been no default. The procedural history of the case

8

demonstrates that no defendant has failed to defend.

9

Plaintiff argues that he is entitled to a default judgment because defendants failed to

10

respond to his complaint within sixty days of the court’s September 29, 2014 order.2 Plaintiff’s

11

argument is based on his assumption that the court’s order, ECF No. 14, required defendants to

12

respond to the complaint within sixty days of the date of the order. ECF No. 26. However, the

13

court’s September 29, 2014 order merely required defendants to respond to the complaint within

14

the time period provided by Rule 12(a) of the Federal Rules of Civil Procedure. ECF No. 14 at 2.

15

Rule 12 provides, in relevant part, that where a defendant has waived service under Rule 4(d), a

16

responsive pleading is due within sixty days after the request for the waiver of service of

17

summons was sent. Fed. R. Civ. P. 12(a). In this case, the requests for waiver were sent on

18

October 7, 2014, and executed waivers were returned on behalf of all defendants on December 1,

19

2014. The waivers indicate that defendants were to file an answer or Rule 12 motion within sixty

20

days of October 7, 2014. ECF No. 19. Defendants’ answer was timely filed on December 8,

21

2014. ECF No. 21.

22

In defendants’ opposition to plaintiff’s motion, defendants explain that the source of

23

plaintiff’s confusion lies with the service of the answer. ECF No. 28. Defendants served their

24

December 8, 2014 answer on plaintiff at Salinas Valley State Prison. See ECF No. 21 at 7.

25

However, plaintiff was transferred out of Salinas Valley State Prison on November 3, 2014. ECF

26

1

27
28

Defendants request that plaintiff’s motion be stricken for failure to comply with the rules
governing summary judgment motions. Defendants’ request is denied.
2
While plaintiff refers to ECF No. 14 as the “September 29, 2014 order,” the court notes that the
order was filed on September 30, 2014.
2

1

No. 28 at 2. Thus, when plaintiff filed his motion for default judgment on December 15, 2014,3

2

he had apparently not yet received service of the answer at his new address.4 Defendants indicate

3

in their opposition that plaintiff was sent another copy of the answer on January 5, 2015.

4

Because defendants timely answered the complaint, there is no basis for finding that any

5

of the defendants are in default. Furthermore, any problems with service have been resolved.

6

Accordingly, plaintiff’s motion for a default judgment is denied.

7

II.

8

Plaintiff filed a motion to compel, a request for production of documents, a motion and/or

9

Plaintiff’s Discovery Motions

clarification regarding the request for production of documents, and a motion for a discovery

10

conference. As a preliminary matter, plaintiff is informed that court permission is not necessary

11

for discovery requests and that neither discovery requests served on an opposing party nor that

12

party’s responses should be filed until such time as a party becomes dissatisfied with a response

13

and seeks relief from the court pursuant to the Federal Rules of Civil Procedure. Discovery

14

requests between the parties shall not be filed with the court unless, and until, they are at issue.

15

In this case, the discovery and scheduling order provides that the parties may conduct

16

discovery until April 17, 2015. ECF No. 25 at 5. The order specifies that with respect to written

17

discovery requests, the parties have forty-five days after the request is served to respond to the

18

request. Id. at 4. With these timelines in mind, the court turns now to plaintiff’s discovery

19

motions.

20

A. Motion to Compel
On December 22, 2014,5 plaintiff filed a motion to compel seeking a response to a letter

21
22

plaintiff sent to defendants on December 8, 2014, as well as a response to his complaint. ECF

23

No. 27. For the reasons discussed above, plaintiff’s request for a response to his complaint is

24

denied as moot.

25
3

26
27
28

The proof of service attached to plaintiff’s motion is dated December 15, 2014. The motion
was filed by the clerk on December 17, 2014. ECF No. 26.
4
The court notes that plaintiff filed a notice of change of address with the court on November 5,
2014 and November 13, 2014. ECF No. 17, 18.
5
Plaintiff’s motion was filed by the clerk on December 29, 2014. ECF No. 27.
3

1

With respect to plaintiff’s request for a response to his letter, plaintiff explains that he

2

received a letter from defense counsel Harper stating that she represents “Fairbanks, Lee, Mungia,

3

Serrano, and Baker.” ECF No. 27. Because plaintiff did not name Fairbanks in his lawsuit, he

4

sent a letter to defense counsel on December 8, 2014 requesting clarification as to whether

5

Fairbanks is actually defendant Balque. On January 12, 2015, defendants filed an opposition to

6

plaintiff’s motion, explaining that defendant Balque’s name had been legally changed to

7

Fairbanks and that plaintiff was mailed a letter with this information on December 12, 2014 and

8

again on January 5, 2015. ECF No. 31 at 2. Because plaintiff has already received the requested

9

information, plaintiff’s motion is denied as moot.

10

B. Request for Production of Documents

11

On February 9, 2015, plaintiff filed a request for production of documents with the court.6

12

ECF No. 35. Plaintiff is reminded that requests for production of documents must first be served

13

on the opposing party and are not to be filed with the court unless a dispute has arisen. At the

14

time plaintiff filed this request, defendants’ forty-five day period for responding to the request

15

had not yet expired. Accordingly, to the extent plaintiff’s motion could be construed as a motion

16

to compel production of documents, the motion is denied as premature. Moreover, defendants

17

have indicated in their statement of clarification that they will respond to plaintiff’s request

18

pursuant to the timeline set forth in the discovery and scheduling order. See ECF No. 36.

19

C. Motion and/or Clarification Regarding Production of Documents

20

On March 5, 2015, plaintiff filed a document entitled “Motion Clarification [sic]

21

Regarding Production of Documents.” ECF No. 37. Plaintiff states that on February 27, 2015

22

and March 3, 2015 he requested certain documents from defendants. To the extent that this

23

motion seeks to compel production of these documents, it is denied as premature because it was

24

filed before the forty-five day period for responding had expired. Defendants have indicated that

25

they are in the process of responding to plaintiff’s discovery requests. ECF No. 39.

26
27
28

6

This document was filed by the clerk on February 17, 2015. ECF No. 35. The court notes that
the docket refers to this document as a motion to compel, and that defendants filed a statement
clarifying that it is a request for production of documents, ECF No. 36.
4

1

D. Motion for a Discovery Conference

2

On March 17, 2015, plaintiff filed a document entitled “Motion for Rule 26(f) Meeting.”

3

ECF No. 38. Plaintiff states that he and defendants have not had a meeting and that he has not

4

heard from defendants regarding a settlement. Defendants responded to plaintiff’s motion,

5

explaining that the parties in this case are not required to have a discovery conference or

6

formulate a discovery plan, and suggesting that plaintiff write a letter to Deputy Attorney General

7

Harper should he wish to confer regarding defendants’ discovery responses. ECF No. 39 at 2.

8
9

Defendants are correct that no discovery meeting is required in this prisoner civil rights
action. See Fed. R. Civ. P. 26(a)(1)(B)(vi), (f)(1). Accordingly, to the extent plaintiff seeks a

10

court-ordered discovery meeting, the motion is denied. However, plaintiff is encouraged to

11

correspond with Deputy Attorney General Harper regarding defendants’ responses to plaintiff’s

12

discovery requests.

13

III.

14

Plaintiff also requests appointment of counsel. ECF No. 34. The United States Supreme

Motion for Appointment of Counsel

15

Court has ruled that district courts lack authority to require counsel to represent indigent prisoners

16

in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

17

exceptional circumstances, the district court may request the voluntary assistance of counsel

18

pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

19

Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

20

The test for exceptional circumstances requires the court to evaluate the plaintiff’s

21

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

22

light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th

23

Cir. 2009) (district court did not abuse discretion in declining to appoint counsel); Wilborn v.

24

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

25

1983). In the present case, the court does not find the required exceptional circumstances.

26

Plaintiff has been able to articulate his requests for discovery and the legal issues appear to be

27

relatively straightforward. Plaintiff’s request for the appointment of counsel will therefore be

28

denied.
5

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s motion for a default judgment (ECF No. 26) is denied;

3

2. Plaintiff’s motion to compel (ECF No. 27) is denied;

4

3. Plaintiff’s request for production of documents (ECF No. 35) is denied;

5

4. Plaintiff’s motion and/or clarification regarding production of documents (ECF No.

6

37) is denied;

7

5. Plaintiff’s motion for a discovery conference (ECF No. 38) is denied; and

8

6. Plaintiff’s motion for appointment of counsel (ECF No. 34) is denied.

9

DATED: April 13, 2015

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6