Debbs v. Harborview Medical Center et al

Filing 69

ORDER RE: Plaintiff's Pending Motions - denying 44 Motion for Default ; striking 45 Motion to Compel; striking 46 Motion for Order to Show Cause; striking 58 Motion to Amend. ; denying 59 Motion ; denying 60 Motion for Order to Show Cause; denying 62 Motion for Relief; denying 64 Motion ; denying 13 Motion to Appoint Counsel ; striking 15 Motion to Amend. ; striking 17 Motion to Dismiss; denying 27 Motion ; denying 28 Motion ; striking 37 Motion ; striking 38 Motion ; striking 39 Motion, by Hon. James P. Donohue.(MD, mailed copy of order to pltf)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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EURAL DEWAYNE DEBBS, SR.,
Plaintiff,

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Case No. C12-479-JLR-JPD

v.
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HARBORVIEW MEDICAL CENTER, et al.,
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ORDER RE: PLAINTIFF’S PENDING
MOTIONS

Defendants.
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This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has filed

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numerous motions which are currently awaiting review by this Court. The Court, having

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considered plaintiff’s motions, and the balance of the record, does hereby find and ORDER as

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follows:

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(1)

Plaintiff’s motion for appointment of counsel (Dkt. No. 13) is DENIED.1 There is

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no right to have counsel appointed in cases brought under 42 U.S.C. § 1983. Although the

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Court, under 28 U.S.C. § 1915(e)(1), can request counsel to represent a party proceeding in

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Plaintiff’s motion to disregard defendant’s response to his motion for appointment of counsel (Dkt. No.
39) is construed as a reply in support of plaintiff’s motion for appointment of counsel and is STRICKEN from the
calendar.

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ORDER STRIKING PLAINTIFF’S
PENDING MOTIONS - 1

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forma pauperis, the Court may do so only in exceptional circumstances. Wilborn v. Escalderon,

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789 F.2d 1328, 1331 (9th Cir. 1986); Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984);

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Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980). A finding of exceptional circumstances

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requires an evaluation of both the likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.

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Wilborn, 789 F.2d at 1331.

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Plaintiff has neither demonstrated a likelihood of success on the merits nor shown that, in

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light of the complexity of the legal issues involved, he is unable to articulate his claims pro se.

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Thus, plaintiff has not demonstrated that this case involves exceptional circumstances which

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warrant appointment of counsel at the present time.
(2)

Plaintiff’s motions to amend his complaint (Dkt. Nos. 15, 37, 38, 46 and 58) are

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STRICKEN. Plaintiff seeks to amend his complaint to add new claims and/or new defendants to

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this action. However, plaintiff failed to submit a proposed amended complaint with any of his

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motions to amend. Any motion to amend which is not accompanied by a proposed amended

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complaint is procedurally deficient and will not be considered. If plaintiff wishes to pursue

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amendment of his complaint, he must submit a new motion to amend together with a proposed

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amended complaint which sets forth each claim plaintiff wishes to pursue against each named

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defendant.

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Plaintiff is reminded that in order to sustain a civil rights action under § 1983 he must

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show (1) that he suffered a violation of rights protected by the Constitution or created by federal

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statute, and (2) that the violation was proximately caused by a person acting under color of state

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or federal law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). In order to satisfy

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ORDER STRIKING PLAINTIFF’S
PENDING MOTIONS - 2

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the second prong, plaintiff must allege sufficient facts to demonstrate that each named defendant

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was acting under color of state law. Plaintiff must also allege sufficient specific facts to

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demonstrate that each named defendant personally participated in causing plaintiff harm of

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federal constitutional dimension. See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).

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Vague and conclusory allegations of harm are not sufficient to state a claim under § 1983.

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(3)

Plaintiff’s motion for summary judgment (Dkt. No. 17) is STRICKEN. Plaintiff

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filed his motion for summary judgment only a week after this Court issued its order directing

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service on the defendants identified by plaintiff in his amended complaint. At that time, none of

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the defendants had yet appeared in this action. Plaintiff also identified in his motion for

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summary judgment two defendants who were not specifically identified in the amended

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complaint and who, therefore, have not yet been served. Plaintiff’s motion for summary

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judgment is therefore premature. Plaintiff may re-submit his summary judgment motion after all

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defendants against whom he seeks judgment have appeared in this action. Plaintiff is advised

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that any future summary judgment motion must fully comport with the requirements of Local

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Rule CR 7 which the current motion does not.2

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(4)

Plaintiff’s motion for the Court to monitor discovery in this case (Dkt. No. 27) is

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DENIED. Plaintiff, in the instant motion, expresses his concern that defendants will attempt to

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manipulate the discovery process to their own advantage and he requests that all parties therefore

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be required to submit all discovery to the Court. The Federal Rules of Civil Procedure and the

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Local Rules of this Court set forth procedures for dealing with alleged discovery disputes and/or

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The Court notes that since filing his motion for summary judgment, plaintiff has filed a number of
declarations in support of that motion. Plaintiff is advised that he may not litigate any future summary judgment
motion in such a piecemeal fashion.

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ORDER STRIKING PLAINTIFF’S
PENDING MOTIONS - 3

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abuses. Requiring the parties to submit all discovery to the Court at the same time as it is served

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on the opposing party will add nothing to this process.

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(5)

Plaintiff’s motion for appointment of a federal investigator (Dkt. No. 28) is

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DENIED. Plaintiff asks that a federal investigator be assigned to this case, apparently to identify

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possible violations of the criminal law by the named defendants. This Court has no authority to

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appointment an investigator for the purpose proposed by plaintiff.

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(6)

Plaintiff’s motion for entry of default (Dkt. No. 44) is DENIED. Plaintiff seeks

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entry of default against defendant Harborview Medical Center based on its alleged failure to

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timely respond to plaintiff’s complaint. However, the record reflects that defendant Harborview

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Medical Center filed a timely motion to dismiss on July 10, 2012. Plaintiff’s motion for default

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is therefore moot.

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(7)

Plaintiff’s motion to compel (Dkt. No. 45) is STRICKEN. Plaintiff seeks to

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compel responses to various discovery requests which he previously submitted to the Court for

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filing. The Court first notes that plaintiff’s motion to compel is defective because he failed to

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comply with the requirements of Fed. R. Civ. P. 37. Rule 37(a)(1) of the Federal Rules of Civil

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Procedure requires that a party seeking to compel discovery include in the motion a certification

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that the moving party “has in good faith conferred or attempted to confer” with the party failing

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to make disclosures. See Fed. R. Civ. P. 37(a)(1). Plaintiff did not submit the requisite

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certification with his motion to compel and, thus, the motion is procedurally deficient.

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The Court also notes that plaintiff failed to properly serve any of his discovery requests

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on defendants. Filing discovery requests with the Court, as plaintiff has done, does not constitute

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proper service. Plaintiff should familiarize himself with the discovery rules before proceeding

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ORDER STRIKING PLAINTIFF’S
PENDING MOTIONS - 4

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further with this aspect of his case. Any future discovery requests which are submitted to the

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Court will be returned to plaintiff.

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(8)

Plaintiff’s motions for sanctions (Dkt. Nos. 59, 60, 62 and 64) are DENIED.

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Plaintiff has filed a number of motions in which he appears to seek the imposition of sanctions

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against defendants based upon what he believes was the improper release of his confidential

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medical records. However, as far as this Court can discern, the medical records at issue are

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records related to plaintiff’s February 10, 2012 admission to Harborview Medical Center. These

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records were apparently provided to plaintiff by counsel for Haborview Medical Center.

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Plaintiff fails to make clear how the release of his own medical records directly to him

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constitutes sanctionable conduct. Plaintiff’s requests for sanctions are frivolous.
(9)

Finally, the Court notes that all of the motions addressed above were procedurally

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defective because plaintiff failed to serve copies of the motions on defendants and he also failed

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to note the motions for consideration as required by the local rules of this court. See Local Rule

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CR 7(b)(1). The Court elected to address the motions in this instance as most were frivolous and

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did not require any response from defendants. Plaintiff is advised, however, that from this point

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forward, any motion which does not fully comply with the Local Rules of this Court will be

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stricken.

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(10)

The Clerk is directed to send copies of this Order to plaintiff, to all counsel of

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record, and to the Honorable James L. Robart.

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DATED this 21st day of August, 2012.

A

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JAMES P. DONOHUE
United States Magistrate Judge

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ORDER STRIKING PLAINTIFF’S
PENDING MOTIONS - 5