Mascorro v. The City of San Diego

• Court: District Court, S.D. California
• Decided: March 8, 2022
• Docket: 3:21-cv-01427
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ELOY MASCORRO, Case No.: 21cv1427-LL-AGS

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. PENDING MOTIONS [ECF Nos. 13- 16] 14 THE CITY OF SAN DIEGO; PARK

RANGER JOHN DOE; SAN DIEGO 15 ORDER TO SERVE PROCESS ON POLICE DEPARTMENT OFFICERS 1- OR BEFORE APRIL 8, 2022 16 4; THE SAN DIEGO FIRE

DEPARTMENT; EMTS 1-3, 17 Defendants. 18 19 20 On August 10, 2021, Plaintiff Eloy Mascorro, proceeding pro se, filed the present 21 action against the City of San Diego, Park Ranger John Doe, the San Diego Police 22 Department (“SDPD”) Officers 1–4, the San Diego Fire Department (“SDFD”), and EMTs 23 1–3. Plaintiff alleges that on September 20, 2020, he was sitting on a bench in Balboa Park 24 when a park ranger approached him and told him to leave. Two SDPD officers 25 subsequently approached Plaintiff and ordered him to leave. Plaintiff did not believe that 26 he was in violation of any laws or park rules. The SDPD officers eventually arrested 27 Plaintiff for trespassing. At that time, Plaintiff requested medical assistance, and the SDFD 28 arrived on the scene. The SDFD personnel did not offer Plaintiff any care. The SDPD 1 officers placed Plaintiff in a hot car for 25 to 40 minutes before transporting him to the 2 SDPD headquarters and then to jail. Upon release from jail, Plaintiff went to the hospital 3 and found out that he had a broken arm. Plaintiff also filed a motion for leave to proceed 4 in forma pauperis (“IFP”) [ECF No. 2] and a motion to appoint counsel [ECF No. 3]. On 5 December 8, 2021, Judge Bashant granted Plaintiff leave to proceed IFP, but denied his 6 motion to appoint counsel. ECF No. 8. On January 5, 2022, the case was transferred to the 7 below signed district judge. ECF No. 12. 8 On October 5, 2021, Plaintiff filed a second civil rights action against the City of 9 San Diego, the SDPD, and SDPD officers. See Mascorro v. The City of San Diego, et al., 10 21cv1725-LL-AGS (“Mascorro II”). Plaintiff alleges that on October 6, 2020, he was 11 unlawfully detained, searched, and arrested in Balboa Park by SDPD officers in relation to 12 an arson investigation. Id. at ECF No. 1. Plaintiff also claims that while in jail, his property 13 was purposely damaged by members of the SDPD as a result of his previous police 14 misconduct complaints.1 On October 10, 2021, Judge Bashant again granted Plaintiff leave 15 to proceed IFP, but denied his motion to appoint counsel. Id. at ECF No. 4. On December 16 12, 2021, Judge Bashant denied Plaintiff’s motion to reconsider her decision not to 17 recommend the appointment of counsel. Id. at ECF No. 8. On January 5, 2022, the case 18 was transferred to the below signed district judge. Id. at ECF No. 11. 19 Since January 5, 2022, Plaintiff filed four ex parte motions in the instant case. ECF 20 Nos. 13-16. “A document filed pro se is to be liberally construed . . . . and a pro se 21 [pleading], however inartfully pleaded, must be held to less stringent standards than formal 22 pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal 23 quotation marks and citation omitted); see also Chavez v. Robinson, 817 F.3d 1162, 1167 24 25 26 1 On October 18, 2021, Judge Bashant entered an Order to Show Cause why the two actions 27 should not be consolidated. ECF No. 5. Because the cases involved separate events, this Court is not inclined, at this time, to consolidate the cases, but may revisit the issue in the 28 1 (9th Cir. 2016), as amended on reh’g (Apr. 15, 2016) (reiterating that “[w]hen a petitioner 2 proceeds pro se, . . . the district court must ‘construe the pleadings liberally and afford the 3 petitioner the benefit of any doubt’”). All the motions are suitable for determination on the 4 papers submitted and without oral argument. See Fed. R. Civ. P. 78(b); S.C. Cal. CivLR 5 7.1(d)(1). 6 I. Motion for Reconsideration 7 On January 6, 2022, Plaintiff filed an ex parte motion for reconsideration of Judge 8 Bashant’s December 8, 2021 order denying Plaintiff’s motion to appoint counsel. ECF No. 9 13. Plaintiff argues the Court should have accounted for his mental health and learning 10 disabilities. ECF No. 13 at 2. There is no indication that Judge Bashant failed to take 11 account of Plaintiff’s abilities in issuing her previous order, or that if she had, the outcome 12 would have been, or should have been, different. See ECF No. 8 at 5 (“[W]hile the Court 13 does not discount Mascorro’s hardships, including his homelessness, lack of financial 14 resources, and lack of government-issued identification, Mascorro’s court filings establish 15 that he is capable of legibly articulating the facts and circumstances relevant to the claims 16 raised in the Complaint.”). Additionally, Judge Bashant not only declined to recommend 17 the appointment of counsel in this case, she declined to do so in Plaintiff’s other case. See 18 Mascorro II, 21cv1725-LL-AGS, ECF No. 8 at 3-4 (“Mascorro’s pleading suggests that he 19 or she is capable of legibly articulating the facts and circumstances relevant to the claims 20 raised in the Complaint.”). In that case, Judge Bashant also denied Plaintiff’s motion for 21 reconsideration in which Plaintiff specifically raised his “learning disability/mental health 22 issues.” See id. at ECF No. 7 at 1; see also id. at ECF No. 8 (finding that Plaintiff had not 23 demonstrated an exceptional circumstance that would require the appointment of pro bono 24 counsel) (citing Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). 25 Accordingly, for the same reasons stated by Judge Bashant, Plaintiff’s motion for 26 reconsideration [ECF No. 13] is DENIED. 27 In Plaintiff’s January 6, 2022 motion for reconsideration, he also requests: (1) an 28 order allowing him a “Court I.D./Visitor I.D.” so that he may enter the Court and access 1 public services; (2) an order for a security escort when required I.D. is not able to be 2 provided; and (3) permission to use his CM/ECF account to file an additional lawsuit 3 against the City and the SDPD. Id. at 1. However, Judge Bashant already denied a similar 4 motion filed by Plaintiff concerning his identification and access to the courthouse. See 5 Mascorro II, 21cv1725-LL-AGS, ECF No. 8 at 2 (“The public interest in securing the 6 courthouse by requiring all entrants present government-issued identification outweighs 7 Mascorro’s interest to save time or costs to litigate his case.”). Additionally, Judge Bashant 8 already ordered Plaintiff to register as a CM/ECF user with the Clerk’s Office by December 9 22, 2021. See id. Accordingly, Plaintiff’s requests are DENIED. Also, on February 17, 10 2022, Plaintiff filed an identical request by ex parte motion. ECF No. 16. For the same 11 reasons stated above, Plaintiff’s second motion for reconsideration [ECF No. 16] is 12 DENIED. 13 II. Motion for Default Judgment 14 On February 13, 2022, Plaintiff filed an ex parte motion for entry of default 15 judgment, apparently against all named defendants. ECF No. 14. Plaintiff states that on 16 December 8, 2021, “I received an order through my CM/ECF account that a summons had 17 been sent to defendants.” Id. ¶ 7. He further states that on February 11, 2022, “I sent an 18 email to the City Attorney’s Office encouraging the defendants to answer the complaint, 19 my intent to file a motion for default judgment, and that more than 60 days had elapsed for 20 them to respond.” Id. ¶ 8. 21 Under Federal Rule of Civil Procedure 12(a) and (b), if a summons and complaint 22 have been served on a defendant, who then fails to respond to the complaint within the 23 allotted time, the defendant is in default. Here, Plaintiff is mistaken that he received notice 24 on December 8, 2021 that a summons was sent to the named defendants, or that even if a 25 summons was “sent,” that this would constitute proper and timely service of process. On 26 December 8, 2021, after Judge Bashant granted Plaintiff leave to proceed IFP, the Clerk 27 issued a summons, but the docket does not indicate that the Clerk notified Plaintiff that a 28 copy of the summons was sent to, or properly served on, the named defendants. Under 1 Federal Rule of Civil Procedure 4, it is Plaintiff’s responsibility to timely and properly 2 serve the summons on each defendant, along with a copy of the complaint. Moreover, 3 before a party may move for default judgment, there must be an entry of default. See Fed. 4 R. Civ. P. 55(a)-(b); Symantec Corp. v. Glob. Impact, Inc., 559 F.3d 922, 923 (9th Cir. 5 2009). Accordingly, Plaintiff’s motion for default judgment [ECF No. 14] is DENIED. 6 III. Other Ex Parte Motion 7 On February 14, 2022, Plaintiff filed an ex parte motion requesting orders (1) “to 8 either allow me to file another lawsuit using my current CM/ECF or make alternative 9 arrangements for me to enter the building housing the Court Clerk’s office so I may file in 10 person without needing a government ID” and (2) “that the Court Clerk’s Office send all 11 mail by email in addition to delivered mail as a precaution so that I may receive all 12 correspondence in a timely manner.” ECF No. 15 at 1. As noted above, however, Judge 13 Bashant already denied a similar motion, but gave Plaintiff permission to register as a 14 CM/ECF user, which would allow him to receive email notifications of all filings and Court 15 activity. See Mascorro II, 21cv1725-LL-AGS, ECF No. 8 at 2. With respect to Plaintiff’s 16 request for permission to file another lawsuit, it is not clear that he needs this Court’s 17 permission, or why he cannot file a lawsuit by the same means he used to file his past three 18 lawsuits. Accordingly, Plaintiff’s other ex parte motion [ECF No. 15] is DENIED.2 19 IV. Failure to Serve Process 20 As noted above, “[t]he plaintiff is responsible for having the summons and complaint 21 served within the time allowed by Rule 4(m) and must furnish the necessary copies to the 22 person who makes service.” Fed. R. Civ. P. 4(c)(1). “If a defendant is not served within 90 23

24 25 2 Plaintiff also repeats his requests for reconsideration of Judge Bashant’s order denying the appointment of pro bono counsel. As noted above, that request was denied. Mascorro 26 also moves “this Court to provide the Court rule requiring a government I.D. to enter the 27 building to access the Court or Court Clerk.” ECF No. 15 at 2. Because Judge Bashant and this Court have already addressed issues raised by Plaintiff related to his identification, and 28 1 days after the complaint is filed, the court – on motion or on its own after notice to the 2 plaintiff – must dismiss the action without prejudice against that defendant or order that 3 service be made within a specified time.” Fed. R. Civ. P. 4(m); see also S.D. Cal. Civ. R. 4 41.1(a) (providing that “[a]ctions or proceedings which have been pending for more than 5 six months, without any proceeding or discovery having been taken therein during such 6 period, may, after notice, be dismissed by the court for want of prosecution”); States S. S. 7 Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9th Cir. 1970) (affirming “[t]hat a court has 8 power to dismiss an action for want of prosecution on its own motion, both under Rule 41 9 (b), F. R. Civ. P., or under its local rule, or even in the absence of such rules, is settled in 10 this circuit”). “The exercise of the power to dismiss is discretionary and will be reversed 11 only for an abuse.” States S. S. Co., 426 F.2d at 804. “In determining whether to dismiss a 12 claim for failure to prosecute or failure to comply with a court order, the Court must weigh 13 the following factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 14 court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) 15 the availability of less drastic alternatives; and (5) the public policy favoring disposition of 16 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). “The 17 public’s interest in expeditious resolution of litigation always favors dismissal.” Id. 18 As noted above, Plaintiff filed his complaint in this case on August 10, 2021 and a 19 summons was issued on December 8, 2021. Plaintiff’s email address is now listed on the 20 docket as part of his contact information with the notation that he is “pro se allowed to 21 efile.” Plaintiff has not, however, filed proof of service on any of the named defendants, 22 and none of the named defendants have appeared. Accordingly, Plaintiff is ORDERED to 23 serve a copy of the summons and complaint on the City of San Diego, and to file proof of 24 service on CM/ECF, on or before April 8, 2022. The manner of service must be consistent 25 with the Federal Rules of Civil Procedure for service of process, most importantly, Rule 4. 26 Failure to serve any of the named defendants, or to file proof of service, on or before April 27 8, 2022, will result in dismissal of the case without prejudice. 28 1 Vv. Conclusion 2 For the foregoing reasons, Plaintiff's ex parte motions [ECF No. 13-16] are 3 || DENIED. Plaintiff is ORDERED to serve process on the City of San Diego, and to file 4 || proof of service, on or before April 8, 2022. 5 IT IS SO ORDERED. 6 ||Dated: March 8, 2022 XO 8 Honorable Linda Lopez 9 United States District Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28