Treglia v. Kerman et al

Filing 50

ORDER by Judge Lucy H. Koh denying 37 Motion for Entry of Default; denying 39 Motion to Stay; denying 40 Motion for Contempt order against Defendants ; denying 21 Motion to Amend/Correct ; ; denying 24 Motion for Entry of Default (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 4/11/2013)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL TREGLIA, 12 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, 13 v. 14 SCOTT KERNAN, et al., 15 Defendants. 16 No. C 12-2522 LHK (PR) ORDER ADDRESSING PLAINTIFF’S PENDING MOTIONS (Docket Nos. 21, 24, 37, 39, 40) 17 Plaintiff, a California state prisoner proceeding pro se, filed an amended civil rights 18 action under 42 U.S.C. § 1983, against prison officials. In its amended order of service, the 19 Court determined that Plaintiff stated cognizable claims of retaliation against Defendants Lewis 20 and Kernan; deliberate indifference to his serious medical needs against Defendant Nurse Smith; 21 and retaliation and due process against Defendants Bumby, James, and Anderson. Pending 22 before the Court are Plaintiff’s motion for leave to amend his complaint; motion for entry of 23 default against Defendants Kernan and Smith; motion for entry of default against Defendants 24 Bumby, James, and Anderson; motion to stay proceedings pending disposition of uncooperative 25 Defendants’ answer; and motion for contempt order against Defendants. 26 27 28 DISCUSSION A. Motion for Leave to Amend Amended Complaint Plaintiff requests that Inmate Gerardo Reyes be permitted to join this action as an Order Addressing Plaintiff’s Pending Motions G:\PRO-SE\SJ.LHK\CR.12\Treglia522pmtns.wpd 1 additional plaintiff. Generally, to join together in one action, plaintiffs must meet two specific 2 requirements: (1) the right to relief asserted by each plaintiff must arise out of or relate to the 3 same transaction or occurrence, or series of transactions or occurrences; and (2) a question of 4 law or fact common to all plaintiffs will arise in the action. Fed. R. Civ. P. 20(a)(1); Coughlin v. 5 Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). However, actions brought by multiple pro se 6 prisoners present unique problems not presented by ordinary civil litigation. For example, 7 transfer of one or more plaintiffs to different institutions or release on parole, as well as the 8 challenges to communication among plaintiffs presented by confinement, may cause delay and 9 confusion. Further, the need for both plaintiffs to agree on all filings made in this action, and the 10 need for all filings to contain the original signatures of both plaintiffs will lead to further delay 11 and confusion. 12 In addition, the interplay of the filing fee provisions in the Prison Litigation Reform Act 13 of 1995 (“PLRA”) suggests that prisoners may not bring multi-plaintiff actions, but rather must 14 each proceed separately. To proceed with a civil action each plaintiff must pay the $350 filing 15 fee required or request leave to proceed in forma pauperis and submit the affidavit and trust 16 account statement, as required by 28 U.S.C. § 1915(a). The PLRA expressly requires that a 17 prisoner, where proceeding in forma pauperis, pay the full amount of the filing fee. 28 U.S.C. 18 § 1915(b)(1). This provision reflected Congress’s intent to reduce the volume of frivolous 19 prisoner litigation in the federal courts. Hubbard v. Haley, 262 F.3d 1194, 1196-97 (11th Cir. 20 2001). In order not to undermine the PLRA’s deterrent purpose, courts have agreed that 21 prisoner-plaintiffs who proceed together in one action must each pay the full filing fee. See, e.g., 22 Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard, 262 F.3d at 1197-98. 23 However, 28 U.S.C. § 1915(b)(3) provides that “in no event shall the filing fee collected exceed 24 the amount of fees permitted by statute for the commencement of a civil action.” If multiple 25 prisoners were permitted to proceed with a joint action, and each paid the full filing fee in 26 accordance with § 1915(b)(1) and the apparent intent of Congress, the amount of fees collected 27 would exceed the amount permitted by statute for commencement of the action, in violation of 28 § 1915(b)(3). Order Addressing Plaintiff’s Pending Motions G:\PRO-SE\SJ.LHK\CR.12\Treglia522pmtns.wpd 2 1 To avoid the problems related to case-management and filing fees, the request to amend 2 the amended complaint to include the permissive joinder of Inmate Gerardo Reyes in this action 3 is DENIED. 4 B. 5 Requests for Default On December 28, 2012, Plaintiff filed a request for entry of default against Defendants 6 Kernan and Smith. On March 4, 2013, Plaintiff filed a request for entry of default against 7 Defendants Bumby, James, and Anderson. At the present time, all Defendants have appeared 8 and waived their right to file an answer, pursuant to 42 U.S.C. § 1997e(g), except for Defendant 9 Smith. More importantly, it is well-settled law that the grant or denial of a motion for the entry 10 of a default judgment is within the discretion of the district court. Lau Ah Yew v. Dulles, 236 11 F.2d 415, 416 (9th Cir. 1956) (per curiam). In his motion, Plaintiff has failed to demonstrate any 12 prejudice from Defendants’ delay in appearing in this action. See Eitel v. McCool, 782 F.2d 13 1470, 1471-72 (9th Cir. 1986) (setting forth factors to be considered in exercising discretion to 14 enter default judgment); see also Lau Ah Yew, 236 F.2d at 416 (upholding denial of motion for 15 entry of default judgment where answer was not timely). Because Plaintiff does not explain 16 how he was prejudiced because of Defendants’ delay in responding, and because the Court 17 recognizes the policy that “[c]ases should be decided upon their merits whenever reasonably 18 possible,” Plaintiff’s requests for the entry of a default judgment are DENIED as to Defendants 19 Kernan, Bumby, James and Anderson. Eitel, 782 F.2d at 1472. As to Defendant Smith, the 20 docket shows that she has still not yet been served. Accordingly, any request for entry of default 21 against Defendants Smith is premature, and DENIED. Plaintiff’s motion to stay the proceedings 22 pending resolution of the requests for default is DENIED as moot. (Docket No. 39.) Plaintiff’s 23 motion for a contempt order against Defendants is DENIED. (Docket No. 40.) 24 25 CONCLUSION Plaintiff motion for leave to file an amended complaint is DENIED. Plaintiff’s requests 26 for default are DENIED. Plaintiff’s motion to stay the proceedings pending resolution of the 27 requests for default is DENIED as moot. Plaintiff’s motion for a contempt order against 28 Defendants is DENIED. Order Addressing Plaintiff’s Pending Motions G:\PRO-SE\SJ.LHK\CR.12\Treglia522pmtns.wpd 3 1 This order terminates docket numbers 21, 24, 37, 39, and 40. 2 IT IS SO ORDERED. 3 DATED: 4/10/13 LUCY H. KOH United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Addressing Plaintiff’s Pending Motions G:\PRO-SE\SJ.LHK\CR.12\Treglia522pmtns.wpd 4

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