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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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DANIEL TREGLIA,

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Plaintiff,

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v.

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SCOTT KERNAN, et al.,
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Defendants.
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No. C 12-2522 LHK (PR)
ORDER ADDRESSING
PLAINTIFF’S PENDING
MOTIONS

(Docket Nos. 21, 24, 37, 39, 40)

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Plaintiff, a California state prisoner proceeding pro se, filed an amended civil rights

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action under 42 U.S.C. § 1983, against prison officials. In its amended order of service, the

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Court determined that Plaintiff stated cognizable claims of retaliation against Defendants Lewis

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and Kernan; deliberate indifference to his serious medical needs against Defendant Nurse Smith;

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and retaliation and due process against Defendants Bumby, James, and Anderson. Pending

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before the Court are Plaintiff’s motion for leave to amend his complaint; motion for entry of

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default against Defendants Kernan and Smith; motion for entry of default against Defendants

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Bumby, James, and Anderson; motion to stay proceedings pending disposition of uncooperative

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Defendants’ answer; and motion for contempt order against Defendants.

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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
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additional plaintiff. Generally, to join together in one action, plaintiffs must meet two specific

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requirements: (1) the right to relief asserted by each plaintiff must arise out of or relate to the

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same transaction or occurrence, or series of transactions or occurrences; and (2) a question of

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law or fact common to all plaintiffs will arise in the action. Fed. R. Civ. P. 20(a)(1); Coughlin v.

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Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997). However, actions brought by multiple pro se

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prisoners present unique problems not presented by ordinary civil litigation. For example,

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transfer of one or more plaintiffs to different institutions or release on parole, as well as the

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challenges to communication among plaintiffs presented by confinement, may cause delay and

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confusion. Further, the need for both plaintiffs to agree on all filings made in this action, and the

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need for all filings to contain the original signatures of both plaintiffs will lead to further delay

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and confusion.

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In addition, the interplay of the filing fee provisions in the Prison Litigation Reform Act

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of 1995 (“PLRA”) suggests that prisoners may not bring multi-plaintiff actions, but rather must

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each proceed separately. To proceed with a civil action each plaintiff must pay the $350 filing

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fee required or request leave to proceed in forma pauperis and submit the affidavit and trust

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account statement, as required by 28 U.S.C. § 1915(a). The PLRA expressly requires that a

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prisoner, where proceeding in forma pauperis, pay the full amount of the filing fee. 28 U.S.C.

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§ 1915(b)(1). This provision reflected Congress’s intent to reduce the volume of frivolous

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prisoner litigation in the federal courts. Hubbard v. Haley, 262 F.3d 1194, 1196-97 (11th Cir.

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2001). In order not to undermine the PLRA’s deterrent purpose, courts have agreed that

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prisoner-plaintiffs who proceed together in one action must each pay the full filing fee. See, e.g.,

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Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004); Hubbard, 262 F.3d at 1197-98.

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However, 28 U.S.C. § 1915(b)(3) provides that “in no event shall the filing fee collected exceed

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the amount of fees permitted by statute for the commencement of a civil action.” If multiple

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prisoners were permitted to proceed with a joint action, and each paid the full filing fee in

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accordance with § 1915(b)(1) and the apparent intent of Congress, the amount of fees collected

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would exceed the amount permitted by statute for commencement of the action, in violation of

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§ 1915(b)(3).
Order Addressing Plaintiff’s Pending Motions
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To avoid the problems related to case-management and filing fees, the request to amend

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the amended complaint to include the permissive joinder of Inmate Gerardo Reyes in this action

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is DENIED.

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B.

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Requests for Default
On December 28, 2012, Plaintiff filed a request for entry of default against Defendants

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Kernan and Smith. On March 4, 2013, Plaintiff filed a request for entry of default against

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Defendants Bumby, James, and Anderson. At the present time, all Defendants have appeared

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and waived their right to file an answer, pursuant to 42 U.S.C. § 1997e(g), except for Defendant

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Smith. More importantly, it is well-settled law that the grant or denial of a motion for the entry

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of a default judgment is within the discretion of the district court. Lau Ah Yew v. Dulles, 236

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F.2d 415, 416 (9th Cir. 1956) (per curiam). In his motion, Plaintiff has failed to demonstrate any

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prejudice from Defendants’ delay in appearing in this action. See Eitel v. McCool, 782 F.2d

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1470, 1471-72 (9th Cir. 1986) (setting forth factors to be considered in exercising discretion to

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enter default judgment); see also Lau Ah Yew, 236 F.2d at 416 (upholding denial of motion for

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entry of default judgment where answer was not timely). Because Plaintiff does not explain

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how he was prejudiced because of Defendants’ delay in responding, and because the Court

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recognizes the policy that “[c]ases should be decided upon their merits whenever reasonably

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possible,” Plaintiff’s requests for the entry of a default judgment are DENIED as to Defendants

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Kernan, Bumby, James and Anderson. Eitel, 782 F.2d at 1472. As to Defendant Smith, the

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docket shows that she has still not yet been served. Accordingly, any request for entry of default

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against Defendants Smith is premature, and DENIED. Plaintiff’s motion to stay the proceedings

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pending resolution of the requests for default is DENIED as moot. (Docket No. 39.) Plaintiff’s

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motion for a contempt order against Defendants is DENIED. (Docket No. 40.)

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CONCLUSION
Plaintiff motion for leave to file an amended complaint is DENIED. Plaintiff’s requests

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for default are DENIED. Plaintiff’s motion to stay the proceedings pending resolution of the

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requests for default is DENIED as moot. Plaintiff’s motion for a contempt order against

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Defendants is DENIED.
Order Addressing Plaintiff’s Pending Motions
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This order terminates docket numbers 21, 24, 37, 39, and 40.

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IT IS SO ORDERED.

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DATED:

4/10/13
LUCY H. KOH
United States District Judge

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Order Addressing Plaintiff’s Pending Motions
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