(PC) Stratmon v. Tucker et al, No. 1:2012cv01837 - Document 69 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending denial of Plaintiff's 68 MOTION for Judgment by Default and to Strike Defendant's answer signed by Magistrate Judge Stanley A. Boone on 1/17/2018. Referred to Judge Dale A. Drozd; Objections to F&R due within 14-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID L. STRATMON, JR., Plaintiff, 11 12 13 v. ANGELA MORRIS, Defendant. 14 15 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:12-cv-01837-DAD-SAB (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF’S MOTION FOR JUDGMENT BY DEFAULT AND TO STRIKE DEFENDANT’S ANSWER [ECF No. 68] FOURTEEN (14) DAY DEADLINE 17 I. 18 INTRODUCTION 19 Plaintiff David L. Stratmon, Jr. is a federal prisoner proceeding pro se in this civil rights action 20 pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 21 (1971). This matter proceeds on Plaintiff’s claim that Defendant Morris interfered with his receipt of 22 incoming mail and failed to notify him that his mail was being withheld. This matter was referred to 23 the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302. 24 Currently before the Court is Plaintiff’s motion for judgment by default and to strike 25 Defendant’s answer, filed on December 7, 2017. (ECF No. 68.) The time for a response to the motion 26 has passed, and no response was filed. The motion is deemed submitted without oral argument. Local 27 Rule 230(l). 28 1 1 II. 2 DISCUSSION Motion for Judgment by Default and to Strike Defendant’s Answer 3 A. 4 On November 30, 2017, Defendant filed a motion for summary judgment under Federal Rule 5 of Civil Procedure 56. (ECF No. 67.) Plaintiff’s response to that motion was due within twenty-one 6 (21) days of the date of service of that motion. Local Rule 230(l). That deadline has passed, and no 7 response has been filed. 8 Instead, as noted above, on December 7, 2017, Plaintiff filed the instant motion. Plaintiff 9 asserts that his ability to litigate his claim in this case has been “severely curtailed due to the 10 destruction and confiscation of his legal materials,” including reference books, affidavits, declarations, 11 draft motions, and other documents. (ECF No. 68, at p. 1.) Plaintiff further asserts that he is unable to 12 reobtain these materials, and that his materials were gathered over a four-year period. Plaintiff further 13 asserts that prison officials failed to protect and preserve his access to the courts, and did so with more 14 than inadvertence, lack of due care, negligence or error. Specifically, Plaintiff states that defendant “S. 15 White” failed to preserve his materials, but the only defendant in this matter is Defendant Morris. 16 Plaintiff further asserts that his items were not properly confiscated as contraband. Therefore, he seeks 17 a judgment by default. 18 Liberally construed, it appears Plaintiff seeks a judgment by default and to strike Defendant’s 19 answer as a sanction for interference by prison officials with his ability to gather and retain evidence 20 in this case and litigate his claim. Logically, this also appears to be a reason for Plaintiff’s failure to 21 respond to Defendants’ pending summary judgment motion. 22 B. Legal Standards 23 Rule 37 of the Federal Rules of Civil Procedure permits sanctions against a party who “fails to 24 obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Those sanctions include 25 “directing that the matters embraced in the order or other designated facts be taken as established for 26 purposes of the action, as the prevailing party claims,” Fed. R. Civ. P. 37(b)(2)(A)(i); “prohibiting the 27 disobedient party from supporting or opposing designated claims or defenses, or from introducing 28 designated matters in evidence,” Fed. R. Civ. P. 37(b)(2)(A)(ii); “striking pleadings in whole or in 2 1 part,” Fed. R. Civ. P. 37(b)(2)(A)(iii); and “rendering a default judgment against the disobedient 2 party,” Fed. R. Civ. P. 37(b)(2)(A)(vi). 3 Dismissal and default judgment are allowed only in “extreme circumstances.” Brookhaven 4 Typesetting Servs., Inc. v. Adobe Sys., Inc., 332 Fed. Appx. 387, 389 (9th Cir. 2009) (citing Wyle v. 5 R.J. Reynolds Indus., Inc., 709 F.2d 585, 589, 591 (9th Cir. 1983)). “[I]n order to warrant imposition 6 of [default] sanctions, the violation(s) must be ‘due to willfulness, bad faith, or fault of the party.’ ” 7 United States ex rel. Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 603 (9th Cir. 1988) 8 (quoting Wyle, 709 F.2d at 589). 9 C. Analysis 10 In general, prisoners have a constitutional right to litigate claims challenging their sentences or 11 the conditions of their confinement without active interference by prison officials. Silva v. Di Vittorio, 12 658 F.3d 1090, 1102 (9th Cir. 2011), overruled on other grounds as stated by Richey v. Dahne, 807 13 F.3d 1202, 1209 n.6 (9th Cir. 2015). Thus, prison officials are prohibited from engaging in malicious, 14 affirmative, and intentional interference in a prisoner’s right to litigate. 15 Here, Plaintiff has only made general and unsupported allegations of interference by prison 16 officials who are not the Defendant in this matter. Plaintiff states that books, legal documents, draft 17 documents, and other documents were interfered with, but does not explain what these materials were. 18 Since no particular documents or materials are described, it is not clear what materials Plaintiff is 19 deprived of that are necessary for litigating this case. Further, there are no allegations against 20 Defendant Morris, although Plaintiff seeks to strike that Defendant’s answer and seeks for default 21 judgment to be entered against that Defendant. 22 Plaintiff also states that his materials were destroyed and confiscated. The fact that some 23 materials were confiscated, rather than destroyed, implies that materials may be returned to him which 24 may enable him to prosecute this case and to prepare a response to the pending motion for summary 25 judgment. The extent of any alleged interference by prison officials is not clear. Plaintiff also does not 26 describe how he knows whether his materials were destroyed, lost, damaged, or taken for storage 27 purposes, or whether he made any attempts to have his materials returned. There are simply no facts 28 given or evidence presented to describe how prison officials have specifically interfered with his 3 1 ability to litigate this case, much less any evidence of willfulness, bad faith, or fault by Defendant 2 Morris through any active interference with Plaintiff’s ability to litigate. On the limited unsupported contentions that Plaintiff has provided, the Court cannot determine 3 4 that that requested sanctions are warranted under the circumstances. 5 III. 6 CONCLUSION 7 For the reasons explained above, the Court HEREBY RECOMMENDS that Plaintiff’s motion 8 for judgment by default and to strike Defendant’s answer, filed on December 7, 2017 (ECF No. 68), 9 be denied. 10 These Findings and Recommendations will be submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days 12 after being served with these Findings and Recommendations, the parties may file written objections 13 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendations.” The parties are advised that failure to file objections within the specified time 15 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 16 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19 Dated: 20 January 17, 2018 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 4

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