Pulido v. Lunes

         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 ...