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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NOU THAO, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-01098-PJH ORDER ON MOTIONS v. Re: Dkt. Nos. 11, 16, 19, 20 JOE DOBIE, et al., Defendants. 12 13 Plaintiff, a state prisoner, proceeds with a pro se civil rights complaint under 42 14 U.S.C. § 1983. In this action plaintiff alleges that he was required to clean and work in an 15 area containing lead paint and asbestos but defendant failed to provide proper protective 16 clothing and the correct mask. He states that he was provided a shower but was not 17 given fresh clothing and he had to wear the same clothing that was exposed to the lead 18 paint and asbestos. Plaintiff does not describe any health effects but states prison 19 officials will not have him tested and he continues to be exposed to asbestos. Plaintiff 20 has filed a motion for default judgment and a motion to compel defendants to answer the 21 complaint pursuant to 42 U.S.C. 1997e(g)(2). Defendants oppose the motion and seek 22 an extension to file dispositive motions. 23 24 25 26 27 28 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. 1 2 (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. 3 Defendants argue that they should not be required to file an answer because 4 plaintiff does not have a reasonable opportunity to prevail on the merits. Defendants note 5 that this action is based on speculative future harm and plaintiff presents no allegations of 6 any injury. Defendants’ argument is well taken. Plaintiff concedes in the complaint that 7 he does not know if he has suffered any injury. Defendants’ will not be required to reply 8 to the complaint at this time, yet if the case continues after dispositive motions are 9 adjudicated, the court may require defendants to file an answer. In their opposition to the motion to file an answer, defendants Dobie, Early, Loredo 11 United States District Court Northern District of California 10 and Smith have filed a request that plaintiff’s action be dismissed as frivolous pursuant to 12 28 U.S.C. § 1915(e) or that plaintiff show cause why summary judgment should not 13 granted sua sponte pursuant to Fed. R. Civ. P. 56(f). Docket No. 18. Plaintiff has filed a 14 response. Docket No. 21. 15 The court previously screened the complaint pursuant to 28 U.S.C. § 1915 and 16 found that liberally construed, plaintiff’s claims were sufficient to proceed. While the court 17 finds that plaintiff does not have a reasonable opportunity to prevail on the merits, the 18 court still finds that plaintiff presents sufficient allegations to proceed beyond § 1915 19 screening. Defendants’ request is denied but they may raise their arguments in a 20 dispositive motion. MISCELLANEOUS MOTIONS 21 22 Plaintiff’s motion for default judgment is denied because defendants timely filed a 23 waiver of reply to the complaint. Moreover, good cause appearing, it is hereby ordered 24 that defendants’ requests for extensions are granted. Defendants have until February 15, 25 2017, to file dispositive motions. CONCLUSION 26 27 28 1. Plaintiff’s motions for default judgment and to compel an answer (Docket Nos. 11, 16) are DENIED. 2 1 2 3 4 5 6 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 7 7 8 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 9 10 \\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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES D DISTRICT C COURT 3 NORTHER DISTRIC OF CAL N RN CT LIFORNIA 4 5 NOU THAO, , Case No. 16-cv-010 098-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 JO DOBIE, et al., OE , Defendants. 9 10 United States District Court Northern District of California 11 12 13 14 15 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 1 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 16 17 18 ou I No Thao ID: Prisoner Id J-27560 Sa Quentin State Priso an S on Sa Quentin, CA 94974 an 19 20 ated: January 12, 2017 7 Da 21 22 23 24 25 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 26 27 28 4

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