Mascorro v. The City of San Diego
3:21-cv-01427
| S.D. Cal. | Mar 8, 2022Background
- Plaintiff Eloy Mascorro (pro se) sued the City of San Diego, a Park Ranger, SDPD Officers 1–4, SDFD, and EMTs alleging unlawful removal/arrest in Balboa Park on Sept 20, 2020, placement in a hot car, lack of medical care, and a resulting broken arm.
- Plaintiff was granted leave to proceed IFP; Judge Bashant denied his motions to appoint counsel in this case and a related case, finding he can articulate his claims.
- Plaintiff filed multiple ex parte motions (reconsideration, courthouse ID/escort, CM/ECF permission, default judgment) after transfer to the undersigned judge.
- Plaintiff alleged defendants were notified but has not filed proof of service; no defendant has appeared.
- Court denied all ex parte motions and ordered Plaintiff to serve the City of San Diego and file proof of service by April 8, 2022, warning failure to serve will result in dismissal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reconsideration of denial to appoint counsel | Mascorro says mental health/learning disabilities warrant counsel | Prior finding that Mascorro can legibly and adequately articulate claims; no exceptional circumstances | Denied — Judge Bashant's decision stands |
| Courthouse ID / security escort / CM/ECF permission | Needs Court ID or escort to enter courthouse and file; requests email delivery of clerk mail | Court previously required government ID for courthouse security; CM/ECF registration already ordered; no special permission needed to file suits | Denied — prior rulings control; CM/ECF registration suffices |
| Motion for default judgment | Says summons was sent and defendants failed to answer >60 days, so default judgment is warranted | No proof defendants were properly served; clerk issuing a summons ≠ service; no entry of default under Rule 55 | Denied — no proper service or entry of default shown |
| Failure to serve process / potential dismissal | (Implied) Plaintiff contends defendants received notice or seeks relief from service requirement | Rule 4 places service burden on plaintiff; Rule 4(m) and local rules permit dismissal for lack of service or prosecution | Ordered to serve City and file proof by April 8, 2022, or case will be dismissed without prejudice |
Key Cases Cited
- Erickson v. Pardus, 551 U.S. 89 (2007) (pro se pleadings construed liberally)
- Chavez v. Robinson, 817 F.3d 1162 (9th Cir. 2016) (liberal construction and benefit of doubt for pro se litigants)
- Agyeman v. Correctional Corp. of Am., 390 F.3d 1101 (9th Cir. 2004) (appointment of counsel only in exceptional circumstances)
- Symantec Corp. v. Global Impact, Inc., 559 F.3d 922 (9th Cir. 2009) (entry of default procedures under Rule 55)
- States S. S. Co. v. Philippine Air Lines, 426 F.2d 803 (9th Cir. 1970) (court's power to dismiss for want of prosecution)
- Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (factors for dismissal for failure to prosecute)