Thornton v. Oregon Department of Corrections Health Services

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JAMES THORNTON,

Case No. 3:22-cv-00925-AR

Plaintiff,

ORDER

v.

REBECCA CARTER, et al.,

Defendants.

ARMISTEAD, Magistrate Judge

Plaintiff James Thornton, an adult in custody at the Oregon State Penitentiary, brings this

42 U.S.C. § 1983 civil rights action as a self-represented litigant. Currently before the court are

several matters.

I. Thornton’s “Motion to Dismiss Qualified Immunity” (ECF No. 36) and “Motion to

Dismiss Defendants Immunity and the Affirmative Defense of Qualified Immunity”

(ECF No. 54).

In their Answer, defendants assert affirmative defenses of qualified immunity and

sovereign immunity. Thornton moves to “dismiss” those affirmative defenses, which the court

construes as a motion to strike them under Rule 12(f) of the Federal Rules of Civil Procedure.

“When moving to strike an affirmative defense, the moving party must persuade the court

that there are no disputed questions of fact or law and that the defense could not succeed under

any set of circumstances.” Campbell v. Tanton, 2021 WL l675313, at *2 (E.D. Cal. Feb. 22,

2021) (citing Sec. and Exch. Comm’n v. Sands, 902 F.Supp. 1149, 1165 (C.D. Cal. 1995)). The

Ninth Circuit has held that an affirmative defense is sufficiently pleaded when it provides the

plaintiff with fair notice of its grounds, which need only be described in general terms. See

Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015) (“the ‘fair notice’ required by

the pleading standards only requires describing the [affirmative] defense in ‘general terms’”).

“[W]hen the defense under attack presents a purely legal question, courts are reluctant to

determine disputed or substantial questions of law on a motion to strike.” Sec. and Exch.

Comm’n, 902 F.Supp. at 1166.

As to the defense of qualified immunity, it is an affirmative defense that must be pleaded

in an answer. Norwood v. Vance, 591 F.3d 1062, 1075 (9th Cir. 2010). Moreover, the court is not

persuaded that defendants cannot succeed on this defense under any set of circumstances, or that

it is insufficient as a matter of law. As to the defense of sovereign immunity, Thornton

specifically pleads his claims against the individual defendants in this case “in their individual

and official capacities.” To the extent Thornton is pursuing his claims against defendants in their

official capacities, they may assert the defense of sovereign immunity. See Nesbit v. Department

of Public Safety, 283 Fed.App’x 531, 533 (9th Cir. 2008) (“[s]uits naming a defendant in his

‘official capacity’ are treated as suits against the state and therefore subject to a defense of

sovereign immunity under the Eleventh Amendment”) (citing Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989)). Accordingly, the court DENIES Thornton’s “Motion to Dismiss

Qualified Immunity” and “Motion to Dismiss Defendants Immunity and the Affirmative Defense

of Qualified Immunity.”

II. Thornton’s Motions for Appointment of Counsel (ECF Nos. 46, 58, and 78)

This court denied Thornton’s first motion for appointment of counsel by Order (ECF No.

12) of August 30, 2022. The Order noted that, at that time, Thornton had not established

exceptional circumstances and that the facts and legal issues were not of substantial complexity

to necessitate appointment of counsel under 28 U.S.C. § 1915(g). See Agyeman v. Corrections

Corporation of America, 390 F.3d 1101, 1103 (9th Cir. 2004). In his several renewed motions

for appointment of counsel, Thornton similarly does not establish exceptional circumstances

warranting the appointment of a member of the pro bono panel of attorneys. The facts and legal

issues are not so complicated that appointment of counsel is needed at this time, given the

difficulties the court routinely experiences obtaining pro bono counsel and plaintiff’s ability so

far. Accordingly, the court finds there that there are no exceptional circumstances that require the

appointment of counsel under ' 1915(e) and, therefore, denies Thornton renewed motions. That

could change. That is, the court will reconsider plaintiff’s request for counsel at a later stage in

this case if the circumstances become exceptional.

III. Thornton’s Motions Pertaining to Discovery Requests (ECF Nos. 48, 49, 52, 64, 65,

and 71)

Thornton has filed five separate motions pertaining to discovery requests: (1) “Motion to

Demand Defendants to Give Production of Documents” (ECF No. 48); (2) “Motion for Demand

Production of Documents & Motion for Summary Judgment” (ECF No. 49); (3) “Motion to

Demand Production of Documents and Answer Interrogatories and Scheduling Trial Date” (ECF

No. 52), (4) “Motion to Compel Discovery” (ECF No. 64); and (5) “Plaintiff’s Motion to

Compel Documents” (ECF No. 65). Thornton also moves for a hearing on his motions to compel

(ECF No. 71).

In response to Thornton’s motions, defendants note that the “motions” are in the nature of

discovery requests and indicate that they will treat them as such, responding in the ordinary

course under the court’s discovery rules. Accordingly, the court DENIES Motions Nos. 48, 49,

52, 64, and 65. The court FINDS MOOT Thornton’s motion for a hearing (ECF No. 71).

IV. Scheduling

Thornton moves for a 90-day extension of time for the parties to complete discovery, file

discovery motions, and file dispositive pretrial motions. The court GRANTS Thornton’s Motion

for Extension of Time (ECF No. 80). The parties have until December 22, 2023, to complete

discovery, file discovery motions, and file dispositive pretrial motions. The court advises

Thornton, however, that no further extension of these deadlines will be forthcoming absent a

showing of extraordinary circumstances. The court FINDS MOOT the parties’ prior motions for

extension of time.

Thornton also moves for leave to file an amended complaint (ECF No. 77), a motion which

supersedes his prior, pending motion for leave to amend (ECF 50) and motion to supplement

complaint (ECF No. 59). Accordingly, the court FINDS MOOT Thornton’s prior motions.

Defendants have until October 11, 2023, to file a response to Thornton’s motion for leave to file

amended complaint (ECF No. 77), and Thornton has until October 25, 2023, to file his reply. The

motion for leave to amend will be taken under advisement on October 25, 2023.

CONCLUSION

For the above reasons, IT IS ORDERED as follows:

1. The court construes Thornton’s “Motion to Dismiss Qualified Immunity” (ECF No.

36) and “Motion to Dismiss Defendants Immunity and the Affirmative Defense of Qualified

Immunity” (ECF No. 54) as motions to strike the affirmative defenses of qualified and sovereign

immunity and, so construed, DENIES them;

2. The court DENIES Thornton’s renewed motions for appointment of counsel (ECF

Nos. 46, 58, and 78);

3. The court DENIES Thornton’s motions pertaining to discovery (ECF Nos. 48, 49,

52, 64, and 65);

4. The court GRANTS Thornton’s motion for extension of time (ECF No. 80) to

December 22, 2023, for the parties to complete discovery, file discovery motions, and file

dispositive pretrial motions, and the court FINDS MOOT the parties’ prior requests for extension

of these deadlines (ECF Nos. 60, 62, 69, and 75);

5. The court FINDS MOOT Thornton’s superseded motion for leave to file amended

complaint (ECF No. 50) and motion to supplement complaint (ECF No. 59), as well as his motion

for extension of time (ECF No. 53);

6. Defendants have until October 11, 2023, to file a response to Thornton’s Motion

for Leave to File Amended Complaint (ECF No. 77), and Thornton has until October 25, 2023, to

file his reply in support of his motion. The court will take Thornton’s Motion for Leave to File

Amended Complaint UNDER ADVISEMENT on October 25, 2023.

DATED: September 28, 2023.

United States Magistrate Judge

5 - ORDER