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Moreno v. Maricopa County Correctional Health Services

United States District Court, D. Arizona

June 28, 2018

Manuel Moreno, Jr., Plaintiff,
v.
Maricopa County Correctional Health Services, et al., Defendants.

          ORDER

          HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE

         Plaintiff Manuel Moreno, Jr. (“Plaintiff”) objects to and has appealed various rulings in three orders issued by Magistrate Judge Metcalf (Docs. 33, 56 & 63). Plaintiff first challenges Judge Metcalf's January 30, 2018 Order (Doc. 32) denying Plaintiff's Motion to Appoint an Independent Medical Expert. (Doc. 33). Plaintiff also challenges portions of Judge Metcalf's March 23, 2018 Order (Doc. 54), which in part, (1) denies Plaintiff's Motion for Entry of Default (Doc. 48); (2) denies Plaintiff's Notice to the Court seeking exemption from rules (Doc. 50); (3) strikes Plaintiff's Response to Defendant Alvarez's First Set of Interrogatories, filed March 20, 2018 (Doc. 51); and (4) denies Plaintiff's Response to Order to Show Cause filed on March 20, 2018, which Judge Metcalf construed to be a motion for reconsideration (Doc. 52). (Doc. 56). In that appeal, Plaintiff requests that this Court withdraw the reference to Judge Metcalf as to Docs. 48, 50, 51 & 52 and grant the relief Plaintiff originally sought in each of these motions.

         Finally, Plaintiff challenges portions of Judge Metcalf's March 29, 2018 Order (Doc. 59) that deny Plaintiff's requests (1) to continue or stay proceedings; and (2) to certify the case to the Attorney General. (Doc. 58). In that appeal, Plaintiff again asks that this Court withdraw the reference to Judge Metcalf as to Doc. 58 and grant the relief sought therein.

         Finally, on May 29, 2018, Plaintiff filed a “Motion for A Decision on Docs. 33, 56, and 63” (Doc. 87) wherein he requests that this Court issue a decision on the pending appeals within 21 days from the filing of his motion. The reference to Judge Metcalf has been withdrawn as to that motion. For the reasons that follow, the Court will not reconsider Judge Metcalf's orders and Plaintiff's Motion for a Decision on Docs. 33, 56, and 63 (Doc. 87) is denied as moot.

         I. Legal Standards

         “A district court may refer a pretrial matter to a magistrate to ‘hear and determine,' and may review the magistrate's order ‘where it has been shown that the magistrate's order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(B)(1)(A); Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002). Thus, this Court reviews an appeal from a magistrate judge's decision “for clear error.” Maisonville v. F2 America, Inc., 902 F.2d 746, 747 (9th Cir. 1990) (citations omitted). Accord Grimes v. City & County of S.F., 951 F.2d 236, 240 (9th Cir. 1991) (“The district court shall defer to the magistrate's orders unless they are clearly erroneous or contrary to law”) (citing Fed.R.Civ.P. 72(b)). Clear error is met when the Court is “left with the definite and firm conviction that a mistake has been committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001).

         II. Analysis

         A. Appeal of January 30, 2018 Order

         Plaintiff first appeals Judge Metcalf's denial of Plaintiff's request for an appointment of a medical expert witness. In denying that motion, Judge Metcalf noted that the purpose of Federal Rule of Evidence 706 was to promote accurate fact-finding and assist the trier-of-fact's ability to understand “a complex or esoteric subject.” (Doc. 32 at 1 (citing Wright & Miller, 29 Fed. Prac. & Proc. Evid. § 6304 (2004))). The Court found that the case at that early stage did not present the need for an independent expert to resolve any pertinent issues. (Doc. 32 at 2). The Court specifically noted that Plaintiff's case centered on claims of deliberate indifference, or subjective states of mind, and not claims such as medical malpractice which would necessitate objective, expert testimony. (Id.) Accordingly, he denied the motion without prejudice. (Id. (noting that “[p]erhaps, as the case progresses, it will become apparent that issues remain which will be best resolved by appointment of an independent expert”). Plaintiff has failed to identify any legal error in the Court's analysis but complains, without citing to supporting authority, that Judge Metcalf should have required briefing from the Defendants that ordered them to answer whether they intended on using an expert witness for their pre-trial pleadings. Failure to require an answer to this specific question at that point in time was not legal error. Although Defendants were obligated to disclose any expert witnesses and their reports by the deadline set in the Court's Scheduling Order[1], the Court did not error by failing to require Defendants to answer whether they intended to present expert testimony regarding Defendants' alleged deliberate indifference in a response to Plaintiff's motion. This decision is therefore affirmed.

         B. Appeal of March 23, 2018 Order

         i. Denial of Entry of Default

         Defendants did not respond to Plaintiff's objection of Judge Metcalf's decision to deny his motion for appointment of a medical expert. Plaintiff thereafter moved for an entry of default, citing Local Civil Rule 7.2. (i). Rule 7.2(i) provides that where there is a “required answering memoranda” to a motion due, a non-response may be deemed consent to the granting of the motion. As Judge Metcalf correctly noted in denying the motion, LRCiv 7.2(i) does not govern Plaintiff's objection, which is permitted and allowed under Fed.R.Civ.P. 72(a).[2] Rule 72(a) states, in part, that a party may “serve and file objections to the [magistrate's] order within 14 days after being served with a copy [of that order].” Fed.R.Civ.P. 72(a). Thus even if the Court would construe Plaintiff's objection as a “motion, ” as Plaintiff urges this Court to do, nothing in Rule 72(a) requires Defendants to file an answering memoranda such that the failure to respond could constitute consent to the objections made therein. Having identified no error in the magistrate's analysis, this decision is also affirmed.

         ii. Decision on Compliance with Service Rules and to Strike Responses to Defendant's Interrogatories

         Plaintiff next objects to Judge Metcalf's refusal to exempt him from the service requirements in Fed.R.Civ.P. 5(d)(1) and paragraph 4.3(g) of the Court's Scheduling Order on account of his indigence. He specifically objects to the Court's decision to strike his filed Responses to Defendant's Interrogatories for noncompliance with these rules. Instead of serving Defendants with copies of his Responses to the Interrogatories, Plaintiff filed them with the Court. Plaintiff also filed a “Notice” which included a “Certificate of Service” that described his “service” of Defendants via the actual filing of his Responses ...


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