Thao v. California Prison Industry Authority et al

Filing 24

ORDER ON MOTIONS by Judge Phyllis J. Hamilton denying 11 Motion for Default Judgment; denying 16 Motion to Compel; granting 19 Motion for Extension of Time to File; granting 20 Motion for Joinder. (Certificate of Service Attached)(napS, COURT STAFF) (Filed on 1/12/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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NOU THAO,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-01098-PJH
ORDER ON MOTIONS

v.

Re: Dkt. Nos. 11, 16, 19, 20
JOE DOBIE, et al.,
Defendants.

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Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42

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U.S.C. § 1983. In this action plaintiff alleges that he was required to clean and work in an

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area containing lead paint and asbestos but defendant failed to provide proper protective

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clothing and the correct mask. He states that he was provided a shower but was not

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given fresh clothing and he had to wear the same clothing that was exposed to the lead

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paint and asbestos. Plaintiff does not describe any health effects but states prison

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officials will not have him tested and he continues to be exposed to asbestos. Plaintiff

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has filed a motion for default judgment and a motion to compel defendants to answer the

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complaint pursuant to 42 U.S.C. 1997e(g)(2). Defendants oppose the motion and seek

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an extension to file dispositive motions.

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MOTION TO COMPEL AN ANSWER
42 U.S.C. 1997e(g) provides that :
(1) Any defendant may waive the right to reply to any action
brought by a prisoner confined in any jail, prison, or other
correctional facility under section 1983 of this title or any other
Federal law. Notwithstanding any other law or rule of
procedure, such waiver shall not constitute an admission of
the allegations contained in the complaint. No relief shall be
granted to the plaintiff unless a reply has been filed.

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(2) The court may require any defendant to reply to a
complaint brought under this section if it finds that the plaintiff
has a reasonable opportunity to prevail on the merits.

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Defendants argue that they should not be required to file an answer because

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plaintiff does not have a reasonable opportunity to prevail on the merits. Defendants note

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that this action is based on speculative future harm and plaintiff presents no allegations of

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any injury. Defendants’ argument is well taken. Plaintiff concedes in the complaint that

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he does not know if he has suffered any injury. Defendants’ will not be required to reply

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to the complaint at this time, yet if the case continues after dispositive motions are

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adjudicated, the court may require defendants to file an answer.
In their opposition to the motion to file an answer, defendants Dobie, Early, Loredo

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United States District Court
Northern District of California

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and Smith have filed a request that plaintiff’s action be dismissed as frivolous pursuant to

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28 U.S.C. § 1915(e) or that plaintiff show cause why summary judgment should not

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granted sua sponte pursuant to Fed. R. Civ. P. 56(f). Docket No. 18. Plaintiff has filed a

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response. Docket No. 21.

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The court previously screened the complaint pursuant to 28 U.S.C. § 1915 and

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found that liberally construed, plaintiff’s claims were sufficient to proceed. While the court

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finds that plaintiff does not have a reasonable opportunity to prevail on the merits, the

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court still finds that plaintiff presents sufficient allegations to proceed beyond § 1915

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screening. Defendants’ request is denied but they may raise their arguments in a

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dispositive motion.
MISCELLANEOUS MOTIONS

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Plaintiff’s motion for default judgment is denied because defendants timely filed a

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waiver of reply to the complaint. Moreover, good cause appearing, it is hereby ordered

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that defendants’ requests for extensions are granted. Defendants have until February 15,

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2017, to file dispositive motions.
CONCLUSION

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1. Plaintiff’s motions for default judgment and to compel an answer (Docket Nos.
11, 16) are DENIED.
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2. Def
fendants’ motions for extensions (Docket No 19, 20) are GRANT
m
e
os.
TED.
De
efendants have until Fe
ebruary 15 2017, to f disposit
5,
file
tive motions
s.
fendant’s re
equest for dismissal or an order to show cau (Docket No. 18) is
d
r
o
use
s
3. Def
DE
ENIED for th reasons set forth above.
he
s
IT IS SO ORDER
S
RED.
Da
ated: January 12, 2017
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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\\can
ndoak.cand.circ9
9.dcn\data\users\PJHALL\_psp\2
2016\2016_01098
8_Thao_v_Dobie
e_(PSP)\16-cv-0
01098-PJH-ord1.docx

United States District Court
Northern District of California

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UNITED STATES D
DISTRICT C
COURT

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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NOU THAO,
,

Case No. 16-cv-010
098-PJH
Plaintiff,

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v.

CERTIFIC
CATE OF S
SERVICE

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JO DOBIE, et al.,
OE
,
Defendants.

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United States District Court
Northern District of California

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I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
U.S District Court, North
S.
C
hern Distric of Californ
ct
nia.
That on January 12, 2017, I SERVED a true and c
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correct copy
y(ies) of the attached,
e
by placing said copy(ies) in a posta paid en velope add
age
dressed to t person(
the
(s)
hereinafter lis
sted, by dep
positing said envelope in the U.S. Mail, or by placing sa
d
e
y
aid
copy(ies) into an inter-of
o
ffice deliver receptaclle located in the Clerk office.
ry
k's

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ou
I
No Thao ID: Prisoner Id J-27560
Sa Quentin State Priso
an
S
on
Sa Quentin, CA 94974
an

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ated: January 12, 2017
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Da

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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C
y:________
_________
_________
By
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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