ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action under 42 U.S.C. § 1983. This case is proceeding on plaintiff's second amended complaint, filed April 27, 2010, wherein plaintiff alleges he has suffered from the denial of adequate dental treatment, resulting in the painful exposure of nerves in his mouth.
The court originally dismissed this case on February 9, 2010, on the basis that plaintiff is a "three strikes" litigant under 28 U.S.C. § 1915(g) and had failed to pay the filing fee. See Docket No. 22. Plaintiff appealed, and the Ninth Circuit found that his appeal was "so insubstantial as to not warrant further review." Order, Docket No. 29 at 1. However, the Ninth Circuit also noted that "the amended complaint attached to the notice of appeal makes more detailed allegations as to the possibility of imminent serious bodily harm than the complaint that was filed in the district court. Respondent is not precluded from filing another action in the district court or from seeking leave to amend this action to attempt to raise these claims." Id. The Ninth Circuit gave no explicit direction to this court, but its use of the phrase "possibility of imminent serious bodily harm" was a clear invocation of the sole exception found in 28 U.S.C. § 1915(g), which allows an otherwise barred "three strikes" prisoner to file a civil action and application to proceed in forma pauperis if, at the time of filing, "the prisoner is under imminent danger of serious physical injury."
After receiving the mandate and suggestion implicit in the Ninth Circuit's order, this court found that plaintiff's claim in the second amended complaint fell within the "imminent danger of serious physical injury" exception of § 1915(g). The court re-opened the case and ordered the second amended complaint served on defendants Swarthout, Brown, Zhang, Sisto and Haviland. See Docket No. 38. All of those defendants have since waived service except Brown, for whom there is no record of service on the docket. Several motions from both sides are now pending before the court.*fn1
II. Plaintiff's motion for injunctive relief
Plaintiff has filed a motion for an injunction ordering the immediate
replacement of some of his teeth. See Docket No. 85. Any claim for
injunctive relief in this case is barred by the existence of the class
action in Perez v. Schwarzenegger, C-05-05241-JSW (N.D. Cal.). Perez
is a class action for injunctive relief addressing the adequacy of
dental care provided by the California Department of Corrections and
Rehabilitation under the Eighth Amendment. Individual suits for
injunctive or equitable relief from allegedly unconstitutional
conditions of confinement cannot be brought where there is a pending
class action suit involving the same subject matter. See Fleming v. Schwarzenegger, 2010 WL
3069349 at *2 (N.D. Cal.); James v. Wilber, 2009 WL 3334849 (E.D.
Cal.)(dismissing individual claims for injunctive relief related to
dental care due to the existence of Perez). A class action suit
seeking only declaratory or injunctive relief does not bar subsequent
individual damage claims by class members, and plaintiff here
specifically seeks damages for his pain and suffering.*fn2
Id. Plaintiff's claims for injunctive and other equitable
relief, however, cannot proceed outside the Perez class action.
Therefore, the motion for an order to repair or replace plaintiff's
teeth should be dismissed.
III. Defendants' motion to declare plaintiff a vexatious litigant
On October 12, 2010, the day Swarthout and Zhang's answers to the amended complaint were due, those defendants instead filed a motion to declare plaintiff a vexatious litigant under Local Rule 151(b). The local rule adopts Title 3A, part 2, of the California Code of Civil Procedure, which deals with vexatious litigants, "as a procedural Rule of this Court on the basis of which the Court may order the giving of a security . . . although the power of the Court shall not be limited thereby." The rule is plainly a discretionary one.
Here, the court finds that requiring security in addition to the $350.00 filing fee for which plaintiff is already obligated would be redundant of the limitation imposed by 28 U.S.C. § 1915(g). It would also preempt that statute's exception for "imminent danger of serious physical injury" -- an exception, defendants fail to acknowledge, that the court has already found applies to this case after the Ninth Circuit expressly stated that plaintiff "is not precluded from filing another action . . . or from seeking leave to amend this action to raise" the very claims he has alleged in the second amended complaint. Defendants Swarthout and Zhang have thus given the court no good cause to revisit its earlier finding that this case should have been reopened or to find that it warrants the imposition of a security requirement on the plaintiff. Moreover, the court cannot ignore, as defendants apparently do, the Ninth Circuit's allowance that plaintiff may attempt to proceed on his claim. Accordingly, the undersigned recommends that their motion to declare plaintiff a vexatious litigant be denied.
The court is not aware of, nor do Swarthout or Zhang cite, any authority standing for the proposition that a motion to declare a plaintiff a vexatious litigant satisfies a defendant's obligation after service to file an answer or motion under Federal Rule of Civil Procedure 12. The types of relief available under Rule 12 are limited, and defendants Swarthout and Zhang do not invoke any of the rule's enumerated categories. The closest their motion comes to meeting one of Rule 12's options is its implicit request for a stay while plaintiff is allowed an opportunity to post security -- after which, should plaintiff not come up with the money, this case would be dismissed under Rule 41, not Rule 12.
In the meantime, the deadlines for defendants Sisto and Haviland to respond to the complaint have passed, but neither defendant has filed an answer, a motion under Rule 12 or any other communication with the court.*fn3 They have not joined Swarthout's and Zhang's motion to declare plaintiff a vexatious litigant. As it stands now, then, not one of the four served defendants has filed an answer or moved to have the second amended complaint dismissed, despite the fact that their respective deadlines to do so have all expired.
Failure to answer or otherwise file a proper response to a complaint within the time required is grounds for the entry of default under Fed. R. Civ. P. 55(a). At the same time, "[t]he Court may properly decline to enter default against a [party] if that [party] has filed a response indicating its intent to defend the action." In re Burchell Enterprises, 2005 WL 1154302 at *2.
Here, defendant Swarthout and Zhang have indicated an intent to defend by filing a motion to declare plaintiff a vexatious litigant on the same day their answers were due. Defendants Sisto and Haviland, however, have not indicated any intent to defend despite having waived service. Therefore the court will enter default against Sisto and Haviland. ...