United States District Court, E.D. California
JOSE J. PULIDO, Plaintiff,
v.
M. LUNES, et al., Defendants.
ORDER
FOLLOWING INITIAL SCHEDULING CONFERENCE HELD ON JUNE 29, 2016
(RESOLVES ECF NO. 53.) ORDER DENYING PLAINTIFF'S MOTION
TO STRIKE DEFENDANTS CRUZ AND SHAW'S AFFIRMATIVE DEFENSES
(ECF NO. 47.) ORDER DENYING PLAINTIFF'S MOTION TO STRIKE
DEFENDANT LUNES' AFFIRMATIVE DEFENSES (ECF NO. 48.) ORDER
DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (ECF NO.
49.)
I.
BACKGROUND
Plaintiff,
Jose J. Pulido ("Plaintiff"), is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983.
This
case now proceeds on the original Complaint filed by
Plaintiff on July 28, 2014, against defendants Sergeant M.
Lunes, Correctional Officer Cruz, and Correctional Officer
Shaw ("Defendants"), on Plaintiff's Eighth
Amendment claims that Defendants were deliberately
indifferent to a serious risk to Plaintiff's safety. (ECF
No. 1.)
On
April 27, 2016, defendants Cruz and Shaw filed an Answer to
the Complaint. (ECF No. 39.) On April 28, 2016, defendant
Lunes filed an Answer to the Complaint. (ECF No. 40.) On
April 29, 2016, the Court issued an order requiring the
parties to make initial disclosures and setting a telephonic
mandatory scheduling conference for June 29, 2016 at 11:00
a.m. before Magistrate Judge Erica P. Grosjean. (ECF No. 41.)
On June 15, 2016, Plaintiff filed a notice of compliance with
the initial disclosures requirement. (ECF No. 52.) On June
17, 2016, defendants Cruz and Shaw filed a notice of
compliance with the initial disclosures requirement (ECF No.
54.) On June 17, 2016, defendant Lunes filed a notice of
compliance with the initial disclosures requirement. (ECF No.
55.) On June 22, 2016, defendants Lunes, Cruz, and Shaw filed
Scheduling Conference Statements. (ECF Nos. 56, 57.)
Now
pending are Plaintiff's motion to strike defendants Cruz
and Shaw's affirmative defenses (ECF No. 47), filed on
May 20, 2016; Plaintiff's motion to strike defendant
Lunes' affirmative defenses (ECF No. 48), filed on May
23, 2016; Plaintiff's motion for reconsideration of the
Court's order denying appointment of counsel (ECF No.
49), filed on June 6, 2016; and Plaintiff's request for
status of discovery order (ECF No. 53), filed on June 15,
2016. Defendants have opposed Plaintiff's motions to
strike their affirmative defenses. (ECF Nos. 50, 51.)
II.
STATUS CONFERENCE
On June
29, 2016, at 11:00 a.m., a telephonic mandatory scheduling
conference was held before Magistrate Judge Erica P.
Grosjean. Plaintiff appeared telephonically on his own
behalf, California Deputy Attorney General Andrew Whisnand
appeared telephonically on behalf of defendants Cruz and
Shaw, and Tom Feher of LeBeau - Thelen, LLP appeared
telephonically on behalf of defendant Lunes. The parties
discussed the status of this case, the parties' initial
disclosures, Plaintiff's pending motions, exhaustion of
administrative remedies, discovery, and further scheduling of
this case.
A.
Motion for Reconsideration (ECF No. 49.)
On June
6, 2016, Plaintiff filed a motion for reconsideration of the
Court's May 20, 2016 order denying Plaintiff's motion
for appointment of counsel. (ECF No. 49.) Defendants did not
oppose the motion for reconsideration. At the hearing, the
Court discussed the Court's limited ability to appoint
counsel in this case and found no reason to justify
reconsideration of its prior decision. Therefore,
Plaintiff's motion for reconsideration was denied,
without prejudice to renewal of the motion for appointment of
counsel at a later stage of the proceedings.
B.
Motion to Strike Defendants Cruz and Shaw's
Affirmative Defenses (ECF No. 47.)
On May
20, 2016, Plaintiff filed a motion to strike defendants Cruz
and Shaw's six affirmative defenses, arguing that
Defendants listed affirmative defenses not relevant to the
claims in this case, and failed to provide fair notice of the
nature of their defenses. (ECF No. 47.) On June 10, 2016,
defendants Cruz and Shaw withdrew their first, fifth, and
sixth affirmative defenses and opposed Plaintiff's motion
to strike their second, third, and fourth affirmative
defenses. (ECF No. 51.)
At the
hearing, the Court found Defendants' second, third, and
fourth affirmative defenses - (2nd) Failure to Exhaust
Administrative Remedies, (3rd) Qualified Immunity, and (4th)
Plaintiff's Own Actions Contributed to His Damages - to
be legally recognized and appropriately plead. In light of
the fact that Defendants withdrew the first, fifth, and sixth
affirmative defenses, the Court denied Plaintiff's motion
to strike and ordered defendants Cruz and Shaw to file an
amended answer within seven days, including only the second,
third, and fourth affirmative defenses.[1]
C.
Motion to Strike Defendant Lunes' Affirmative
Defenses (ECF No. 48.)
On May
23, 2016, Plaintiff filed a motion to strike defendant
Lunes' twenty-seven affirmative defenses, arguing that
defendant Lunes' affirmative defenses are not relevant to
the claims in this case. (ECF No. 48.) On June 8, 2016,
defendant Lunes filed an opposition to the motion and
requested leave to file an amended answer withdrawing all but
these eleven affirmative defenses: (1) Failure to Exhaust
Administrative Remedies, (2) Immunity/Qualified Immunity, (3)
Good Faith Performance of Official Duties, (4) Liability or
Damages, If Any, Was Caused by the Actions of Third Parties,
(5) Liability or Damages, If Any, Was Caused by an
Intervening and/or Superseding Cause, (6) Assumption of the
Risk, (7) Liability or Damages, If Any, Was Caused by an
Unavoidable Incident, (8) Failure to Reasonably Mitigate
Damages, (9) Unclean Hands, (10) Statute of Limitations, and
(11) Plaintiff's Attempted Suicide Was a Volitional Act.
(ECF No. 50.)
At the
hearing, the Court granted defendant Lunes' request to
file an amended answer, and ordered defendant Lunes to file
the amended answer within seven days, including only the
eleven affirmative defenses listed above.[2] The Court found
the eleven listed affirmative defenses to be legally
recognized and appropriately plead. In light ...