Fuller v. Granville et al

Filing 151

ORDER that Plaintiff's Full Adversary Hearing pursuant to Rule 611(b) Fed R. of Evid. (Doc. 120 ) is denied. The part of Plaintiff's "Intervene, Intervene, Intervene!!! 9/11" (Doc. 126 ), which seeks injunctive relief is denied. "Plaintiff's Request to Conduct Jail House Depositions of a Prisoner" (Doc. 128 ) is denied. Signed by Judge David G Campbell on 11/10/15.(SJF)

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KAB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Samuel Louis Fuller,

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No. CV 14-00020-PHX-DGC

Plaintiff,
v.

ORDER

Kari Jill Granville, et al.,

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Defendants.

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Plaintiff Samuel Louis Fuller, who is currently confined in Maricopa County

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Fourth Avenue Jail, brought this civil rights case pursuant to 42 U.S.C. § 1983.

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(Doc. 41.) Pending before the Court are: (1) Plaintiff’s “Full Adversary Hearing pursuant

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to Rule 611(b) Fed R. of Evid.” (Doc. 120), which is construed as a motion seeking a

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preliminary injunction; (2) the portion of Plaintiff’s “Intervene, Intervene, Intervene!!!

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9/11” (Doc. 126), which seeks injunctive relief1; and (3) “Plaintiff’s Request to Conduct

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Jail House Depositions of a Prisoner” (Doc. 128), which the Magistrate Judge construed

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as a motion seeking injunctive relief (see Doc. 135).

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The Court will deny Plaintiff’s Motions.
I.

Background

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On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff

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stated an excessive force claim in Count II against Defendant Hadsall and directed

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The Magistrate Judge previously denied that part of Plaintiff’s Motion that
sought to supplement his First Amended Complaint. (See Doc. 129.)

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Defendant Hadsall to answer. (Doc. 40.) The Court dismissed the remaining claims and

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Defendants. (Id.)

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II.

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Plaintiff’s “Full Adversary Hearing pursuant to Rule 611(b) Fed R. of Evid.”
(Doc. 120)

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In his Motion, Plaintiff alleges that Defendant Hadsall used excessive force on

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Plaintiff due to policies instituted by Sheriff Joseph Arpaio and the Maricopa County

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Sherriff’s Office (MCSO). Plaintiff specifically objects to that part of a policy which

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allows an officer “to balance the need to control the subject against the intrusion or

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impact of the capture.” (Doc. 120 at 5.) Plaintiff argues that the “use of force policy”

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should not be used on closed custody inmates with serious mental illness.” (Id. at 7.)

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Plaintiff also asserts that the force used on him goes against the policy and procedure

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governing use of force. (Id. at 10.) In the remainder of his Motion, Plaintiff appears to

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attempt to prove that the force that Defendant Hadsall used against him was “excessive.”

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(Id. at 1-12.) It is unclear what injunctive relief Plaintiff seeks because the last three

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pages of Plaintiff’s Motion were not filed with the Court. (See Doc. 120 at 12 (showing

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that last page before exhibits is “12 of 15.”)) In his Reply, Plaintiff asserts that he seeks a

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preliminary injunction preventing “detention officers at the jail from violating their own

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regulations.” (Doc. 131 at 3.)

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Because the Court does not have the last three pages of Plaintiff’s motion, the

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Court cannot ascertain the full relief that Plaintiff seeks from the Court. The Court notes,

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however, that Plaintiff’s requests for relief appear to be premised on policy, practice, and

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custom claims that are not alleged in the First Amended Complaint. Because the relief

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Plaintiff seeks appears to exceed the scope of his First Amended Complaint, the Court

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does not have jurisdiction to grant Plaintiff such relief. See Devose v. Herrington, 42

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F.3d 470, 471 (8th Cir. 1994) (per curiam) (a party seeking injunctive relief must

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establish a relationship between the claimed injury and the conduct asserted in the

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complaint). Moreover, Plaintiff appears to seek an injunction against Sheriff Arpaio and

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all detention officers at the Maricopa County Fourth Avenue Jail, none of whom is a

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defendant in this action. A court may issue an injunction against a non-party only where

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the non-party acts in active concert or participation with an enjoined party. Fed. R. Civ.

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P. 65(d)(2) (a preliminary injunction only binds those who receive actual notice of it by

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personal service or are parties, their officers, agents, servants, employees, and attorneys,

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and persons in active concert); see Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1984) (“A

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federal court may issue an injunction if it has personal jurisdiction over the parties and

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subject matter jurisdiction over the claim; it may not attempt to determine the rights of

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persons not before the court.”); see also Zenith Radio Corp. v. Hazeltine Research, Inc.,

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395 U.S. 100, 110 (1969). Plaintiff has not established that the Court has jurisdiction to

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issue an injunction against the Sheriff and all officers at the Maricopa County Fourth

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Avenue Jail.

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Because the scope of relief that Plaintiff seeks is unclear, because Plaintiff appears

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to seek relief outside the scope of his First Amended Complaint, and because Plaintiff

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seeks relief against non-parties, his “Full Adversary Hearing pursuant to Rule 611(b) Fed

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R. of Evid.” will be denied.

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III.

Plaintiff’s “Intervene, Intervene, Intervene!!! 9/11” (Doc. 126)

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Plaintiff seeks injunctive relief against the Inmate Legal Service Division at the

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Fourth Avenue Jail (“I.L.S.”). (Doc. 126.) Plaintiff asserts that Defendant Hadsall is in

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“active concert” with I.L.S. because, in response to interrogatories, Defendant Hadsall

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responded that “as a sergeant he does give orders to officers, who are expected to obey

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reasonable and legal orders,” and that part of his duties include scanning Inmate Legal

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Request forms to see whether there is an urgent matter and then forwarding the form to

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Inmate Legal Services. (Doc. 126 at 22, 27.)

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Plaintiff asserts that I.L.S. has retaliated against him for his claims against

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Defendant Hadsall by (1) “interfering” with Plaintiff “contacting officers of the court,”

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(2) depriving Plaintiff of the right to “publish his litigation,” and (3) “subverting”

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“plaintiff’s request for intervention and or relief through institutional grievance process

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and is harassment today.” (Doc. 126 at 4). Specifically, Plaintiff alleges that I.L.S. has

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refused to forward correspondence to certain lawyers and investigators. (Id. at 5-9.)

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Plaintiff requests an Order to “direct[,] instruct[,] or order Inmate Legal Services to

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maintain their Rules and Regulations Guidelines for Pro Per Inmate” and that Plaintiff be

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permitted without interference to communicate with officers of the Court. (Id. at 126 at

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12-13.)

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Based on the exhibits attached to his Motion, Plaintiff’s argument appears to be

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that he should not be charged for postage and copying with respect to letters he submits

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to attorneys through I.L.S. Plaintiff objects to Inmate Legal Services’ rejection of free

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postage and copying on the basis that Plaintiff is not represented by any of the attorneys

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to whom he wishes to send mail.2

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The Court does not agree with Plaintiff that Defendant’s responses to Plaintiff’s

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interrogatories show that Defendant is acting in concert with I.L.S. such that the Court

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would have jurisdiction to issue an injunction against I.L.S. in this case. Contrary to

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Plaintiff’s assertions, Defendant’s responses do not indicate that he has had any contact

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with I.L.S. in determining whether Plaintiff’s correspondence is legal mail, and Plaintiff

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has not shown that I.L.S. is otherwise acting in concert with Defendant Hadsall or

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retaliating against Plaintiff for filing this action. Accordingly, the Court does not have

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jurisdiction to issue the injunction requested by Plaintiff.

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complaints about I.L.S. exceed the scope of the First Amended Complaint and do not

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implicate Plaintiff’s ability to access the court in this action. Accordingly, Plaintiff’s

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“Intervene, Intervene, Intervene!!! 9/11” will be denied.

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IV.

Moreover, Plaintiff’s

Plaintiff’s Request to Conduct Jail House Depositions (Doc. 128)

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Plaintiff requests that he be permitted to interview Brian Ortiz, an inmate in the

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Fourth Avenue Jail. Plaintiff asserts that he does not want to take depositions and, thus,

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need not demonstrate that he can pay for such depositions as required by the Court’s

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The letters not sent by I.L.S., which Plaintiff attached as exhibits to his motion,
appear to concern Plaintiff’s criminal case and a different civil case, CV 13-1296-PHXDLR (JFM).
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Scheduling Order. Plaintiff asserts that he wants to ask Brian Ortiz about closed custody

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housing arrangements relating to ID headcounts, medication pass out, cell extractions,

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and placement by MCSO staff. Plaintiff further asserts that Ortiz was present “during the

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times of the incident here before this court” and “possess[es] material information to the

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support and attack of a claim.” (Doc. 128 at 4.) Plaintiff asserts that Ortiz can testify that

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Defendant’s cell extraction did not comply with MCSO policy. (Id. at 5.)

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Defendant responds that he does not object to the interview taking place, but

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advises the Court that Mr. Ortiz is no longer in MCSO custody and is now confined in the

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Arizona Department of Corrections. (Doc. 138 at 1.) Defendant asserts that if Plaintiff

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wants to conduct a telephonic interview with Mr. Ortiz, the jail will cooperate by making

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Plaintiff available, but Defendant asserts that the cost of the call should be borne by

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Plaintiff and not the jail. (Id. at 3.) Defendant also questions the usefulness of an

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interview, considering that it appears that Plaintiff already knows what Mr. Ortiz will say

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and the interview itself cannot be used at trial. (Id.) Defendant notes that the relevancy of

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Mr. Ortiz’s proposed testimony as to housing arrangements, headcounts, and cell

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extractions is not clear. (Id.) Additionally, Defendant asserts that, pursuant to Rule 31 of

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the Federal Rules of Civil Procedure, Plaintiff can conduct the deposition of Mr. Ortiz

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through written questions.

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discovery has ended and Plaintiff cannot show good cause to allow a deposition at this

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late date. (Id.)

(Id. at 4.)

Finally, Defendant asserts that the time for

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Plaintiff did not file a reply in support of his motion.

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Plaintiff has not shown how an interview with Mr. Ortiz will assist him in this

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action. It appears that Plaintiff knows the content of Mr. Ortiz’s testimony, and an

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informal interview would not be admissible at trial. Plaintiff has not moved to depose

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Mr. Ortiz through written questions, and the discovery deadline has passed in any event.

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See Doc. 47, Scheduling Order (“All motions regarding discovery and disclosure shall be

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filed by August 28, 2015”). Plaintiff has not shown good cause why discovery should be

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reopened to permit a deposition by questions of Mr. Ortiz. See Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (Rule 16 permits a scheduling order

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to be modified only upon a showing of good cause by the party seeking amendment);

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Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1026 (9th Cir. 2006) (In the

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context of motions to reopen discovery, good cause requires the movant to show it

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“diligently pursued its previous discovery opportunities”). For the foregoing reasons,

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Plaintiff’s Request to Conduct Jail House Depositions of a Prisoner” (Doc. 128) will be

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denied.

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IT IS ORDERED:

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(1)

Plaintiff’s Full Adversary Hearing pursuant to Rule 611(b) Fed R. of Evid.

(Doc. 120) is denied.
(2) The part of Plaintiff’s “Intervene, Intervene, Intervene!!! 9/11” (Doc. 126),
which seeks injunctive relief is denied.
(3) “Plaintiff’s Request to Conduct Jail House Depositions of a Prisoner” (Doc.
128) is denied.
Dated this 10th day of November, 2015.

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