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Derrick Benjamin v. California Department of Corrections and Rehabilitation

April 11, 2013

DERRICK BENJAMIN, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Plaintiff is a former state prisoner, recently paroled, who proceeds in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. The court found, in an initial screening order pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A(b), that the complaint states potentially cognizable claims under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 et seq., and Section 504 of the Rehabilitation Act of 1973, based on allegations of disability-based discrimination. Plaintiff initiated this action while a prisoner at the California Medical Facility ("CMF"), assigned to the Enhanced Outpatient Program ("EOP"), a treatment program for prisoners requiring specialized mental health care. As summarized in the court's screening order, the complaint alleges the following:

[D]efendants California Department of Corrections and Rehabilitation ("CDCR"), Governor Jerry Brown, and [CMF] Warden Vimal Singh, have adopted or ratified policies, practices and procedures, or failed to eliminate discriminatory policies, practices and procedures, that bar plaintiff and other similarly-situated EOP or CDCR inmates from basic educational, vocational, employment, and recreational programs that are provided to other nondisabled inmates. Plaintiff alleges that he and other inmates have been denied equal access to prison programs and services for which they are otherwise qualified, based solely on their disabilities. Specifically, plaintiff contends he was denied access to (1) educational opportunities, including the electronics programs, computer classes, the art in corrections program, and TABE score test; (2) employment and vocational opportunities; (3) recreational programs and facilities; and (4) religious programs, including church services and Bible study.

(Dkt. No. 5 at 3 (internal citations omitted).) The complaint, which seeks declaratory and injunctive relief, and monetary damages, was construed to be an individual suit, not a class action. Based on these allegations, the court ordered service of the complaint on defendants CDCR, Governor Brown, and CMF Warden Singh. (Dkt. No. 14.)

Soon thereafter, plaintiff was transferred to Atascadero State Hospital. (Dkt. Nos. 16, 17.) Defendants responded to the complaint by filing a motion to declare plaintiff a "three-strikes" litigant under 28 U.S.C. § 1915(g), and thus to revoke plaintiff's in forma pauperis status and to stay this action pending plaintiff's payment of the full filing fee. Plaintiff filed an opposition to defendants' motion, together with a notice that he had been transferred to Donovan Correctional Facility; plaintiff also moved for entry of default and default judgment, and for summary judgment. Defendants responded to plaintiff's motions. Plaintiff thereafter informed the court that he had been paroled.

For the reasons that follow, the undersigned recommends that each of the pending motions be denied, and that plaintiff be required to submit a new application to proceed in forma pauperis by a non-prisoner, and an amended complaint.

II. Plaintiff's In Forma Pauperis Status

The "three-strikes" litigant provision of 28 U.S.C. § 1915(g) applies only to prisoners. See 28 U.S.C. § 1915(g).*fn1 Because plaintiff is no longer a state prisoner, this provision does not apply to him. Accordingly, defendants' motion to declare plaintiff a "three-strikes" litigant under 28 U.S.C. § 1915(g), should be denied.

Nevertheless, plaintiff should be required to submit a new application to proceed in forma pauperis, specific to non-prisoners. Plaintiff's current in forma pauperis status is premised on a prior balance in plaintiff's former prison trust account, which is no longer pertinent. Upon review of plaintiff's completed non-prisoner application to proceed in forma pauperis, the court will reassess whether plaintiff should continue to proceed in this action in forma pauperis.*fn2

III. Plaintiff's Motion for Default Judgment

Plaintiff moves for entry of default and default judgment on the ground that no defendant answered the complaint within 20 days after being served with the summons and complaint. (Dkt. No. 24.) Rule 12(a)(1)(A)(i), Federal Rules of Civil Procedure, requires that defendants file a responsive pleading within 21 days after service of process. However, the Federal Rules further provide that, if a defendant timely waives service of process, the deadline for filing a responsive pleading shall be 60 days. See Fed. R. Civ. P. 12(a)(1)(A)(ii) ("A defendant must serve an answer . . . if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent. . . ."). Moreover, this deadline is suspended pending the court's decision on an interim responsive motion. Fed. R. Civ. P. 12(a)(4) (responsive pleading due 14 days after notice of the court's action on the interim motion).

In the present case, each defendant timely waived service of process (see Dkt. Nos. 27, 28),*fn3 thus deferring for a period of 60 days the deadline for filing a responsive pleading. During this 60-day period, defendants timely filed their motion to revoke plaintiff's in forma pauperis status, thus postponing the deadline for serving and filing an answer until 14 days after notice of the court's decision on the pending motion. Fed. R. Civ. P. 12(a)(4).

For these reasons, plaintiff's argument in support of his motion for entry of default and default judgment is without merit, and the motion should be denied. See Fed. R. Civ. P. 55 (authorizing entry of default and default judgment only ...


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