Green v. Ryan et al

Filing 73

ORDER: Plaintiff's Motions for Subpoenas (Docs. 64 , 65 ) are denied. Plaintiff's Motion for Initial Discovery Waiver (Doc. 66 ) is denied as moot. Plaintiff's Application for Leave to Proceed In Forma Pauperis (Doc. 68 ) is denied as moot. Plaintiff's Motions to Supplement Pleading (Docs. 67 , 69 ) are denied. Plaintiff's Motion for Interrogatories (Doc. 72 ) is denied. Signed by Judge Rosemary Marquez on 11/8/2019. (ARC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alfred Green,
Plaintiff,

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No. CV-18-00068-TUC-RM
ORDER

v.

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Corizon Health Services, et al.,
Defendants.

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Pending before the Court are Plaintiff’s “Motion for Leave of Court to Subpoena

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Defendants” (Doc. 64); “Motion for Subpoenas” (Doc. 65); “Motion [for] Initial

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Discovery Waiver” (Doc. 66); “Motion to [] Amend Complaint” (Doc. 67); Application

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for Leave to Proceed In Forma Pauperis (Doc. 68); “Motion to Amend/Correct Amended

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Complaint” (Doc. 69); and “Motion [for] Interrogatories” (Doc. 72).

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I.

Background

Plaintiff filed this action pursuant to 42 U.S.C. § 1983 on February 9, 2018. (Doc.
1.) On June 26, 2018, the Court dismissed the initial Complaint with leave to file a First
Amended Complaint (“FAC”), and granted Plaintiff’s second Application to Proceed in
Forma Pauperis. (Doc. 10.) The Court denied a third Application to Proceed in Forma
Pauperis as moot on July 24, 2018. (Doc. 12.) Plaintiff filed a FAC on August 6, 2018.
(Doc. 14.) The Court dismissed the FAC on September 26, 2018, with leave to file a

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Second Amended Complaint (“SAC”). (Doc. 17.) Plaintiff filed a SAC (“Complaint”) on

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October 29, 2018. (Doc. 22.) The Complaint alleges violations of Plaintiff’s First, Fourth,

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Eighth and Fourteenth Amendment rights connected to the allegedly deficient medical

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treatment he received following an off-site transportation incident on February 2, 2017.

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(Doc. 14 at 4; Doc. 28.) On December 20, 2018, the Court ordered Defendant Corizon to

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answer Count One of the Complaint as to Plaintiff’s Eighth Amendment claim and

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dismissed the remaining defendants and claims. (Doc. 28 at 8–11.) Defendant filed its

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answer on February 28, 2019. (Doc. 39.) Pursuant to the Court’s April 5, 2019

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Scheduling Order, discovery closed on October 17, 2019. (Doc. 41 at 2–3.) Dispositive

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motions are due on November 18, 2019. (Doc. 41 at 4.)

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Plaintiff filed two Motions for Subpoenas on September 17, 2019. (Docs. 61, 62.)

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The Court denied these motions on October 2, 2019 for failure to comply with the

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procedural requirements set forth in Fed. R. Civ. P. 45 and Gen. Ord. 18-19. (Doc. 62.)

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II.

Motions for Subpoenas

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Plaintiff has filed two Motions requesting the Court to issue subpoenas. (Docs. 64,

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65.) The Court ruled on Plaintiff’s previous Motions for Subpoenas (Docs. 60, 61) on

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October 2, 2019 (Doc. 62).

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Plaintiff’s pending motions request the Court to issue subpoenas on Plaintiff’s

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behalf to eight individuals, seven of whom work as medical providers for Corizon at

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ASPC-Tucson, Cimarron Unit and one of whom is an inmate at ASPC-Tucson, Cimarron

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Unit. (Doc. 65.) Plaintiff states that “each individual. . . has pertinent information that is

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crucial to Plaintiff’s case and should be made available.” (Id.) He additionally states, with

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respect to the inmate he wishes to subpoena, that he “was assisted by [inmates who]

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would carry heavy tables that I had to stand on or they would [illegible] mask of certain

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section for painting” (Doc. 65) and that “inmates witness[ed] Plaintiff’s daily movements

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after [the] accident” (Doc. 64).

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With respect to Plaintiff’s requests for subpoenas for the seven medical

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professionals, Plaintiff fails to “state with particularity the reasons for seeking the

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testimony and documents” as required by General Order 18-19. Even if, as Plaintiff

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claims, these individuals have “pertinent information that is crucial to Plaintiff’s case,”

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this is not a sufficiently specific reason for seeking their testimony.

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With respect to Plaintiff’s request to subpoena inmate “Rudolph Turnner,” an

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inmate at ASPC-Tucson, Cimarron Unit, although Plaintiff has stated with particularity

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the reasons for seeking Mr. Turnner’s testimony and/or documents, he has not attached a

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copy of the proposed subpoena to his motion as required by General Order 18-19.

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Because Plaintiff has not complied with the procedural requirements for requesting the

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Court to issue subpoenas, his Motions for Subpoenas will be denied.

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III.

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In his “Motion [for] Initial Discovery Waiver,” Plaintiff “requests waiver

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exemption in accordance to disclosed protection.” (Doc. 66.) Plaintiff cites Fed. R. Civ.

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P. 26, which provides that actions “brought without an attorney by a person in the

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custody of the United States, a state, or a state subdivision” are exempt from initial

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disclosure requirements. Fed. R. Civ. P. 26(a)(1)(B)(iv).

Motion for Initial Discovery Waiver

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The relief or action that Plaintiff seeks from the Court is unclear. To the extent

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Plaintiff seeks an order exempting this action from initial disclosure requirements, the

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Court’s April 5, 2019 Scheduling Order already noted that this case is exempted from

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initial disclosure requirements pursuant to Fed. R. Civ. P. 26(a)(1)(B). (Doc. 41.)

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Therefore, this Motion will be denied as moot.

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IV.

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Plaintiff has filed a fourth Application to Proceed in Forma Pauperis. (Doc. 68.)

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The Court granted Plaintiff’s second Application to Proceed in Forma Pauperis on June 6,

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2018. (Doc. 10.) The Court later denied Plaintiff’s third Application to Proceed in Forma

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Pauperis as moot, because it had already granted the second Application. (Doc. 12.)

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Plaintiff’s fourth Application will also be denied as moot.

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....

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....

Application to Proceed In Forma Pauperis

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V.

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Plaintiff has filed two Motions requesting leave to amend his Complaint. (Docs.

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67, 69.) Specifically, Plaintiff seeks to amend his complaint to add an additional cause of

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action against Corizon, alleging an Eighth Amendment violation as a result of injuries

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sustained while Plaintiff was being transported on February 7, 2019.1 (Doc. 67.) Plaintiff

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alleges that the vehicle “was abruptly stopped, causing [him] to become dislodged from

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his seat and trajected [sic] head first into iron and plexiglass partition.” (Id.) The impact

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caused pain in Plaintiff’s head and lower extremities and caused him to lose

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consciousness. (Id.) Thereafter, Plaintiff was taken to the medical unit, where a nurse

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informed him that he was unable to treat Plaintiff at that time but that the accident and

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injuries would be documented for the doctor. (Id.) Plaintiff was only seen by a medical

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provider fifty [50] days after the accident. (Id.) He alleges that he suffered “needlessly

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from pain” due to Corizon’s improper staffing and handling of his injuries. (Id.)

Motions to Supplement Pleading

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Plaintiff’s Motions were not filed within the time frame permitted to amend as a

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matter of course under Fed. R. Civ. P. 15(a). Moreover, Plaintiff raises claims stemming

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from additional events that occurred after the events giving rise to the original Complaint.

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As such, the Court construes the Motions as requests to file a supplemental pleading.

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Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and

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Procedure: Civil 2D § 1504 (1990).

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“Upon motion of a party the court may, upon reasonable notice and upon such

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terms as are just, permit the party to serve a supplemental pleading setting out any

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transaction, occurrence, or event that happened after the date of the pleading to be

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supplemented.” Fed. R. Civ. P. 15(d). “While leave to permit supplemental pleading is

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favored, it cannot be used to introduce a separate, distinct, and new cause of action.”

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Planned Parenthood of S. Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (internal

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citations and quotations omitted).

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The incident that is the subject of the operative Complaint occurred in February 2017.
The facts alleged in both incidents are very similar.
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In considering whether to permit a supplemental pleading, courts typically require

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some relationship between the original events giving rise to the complaint and the later

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events. See Cash v. Wetzel, 8 F. Supp. 3d 644, 657 (E.D. Pa. 2014) (prisoner plaintiff

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permitted to supplement with claim of retaliation for filing instant action); Keith v. Volpe,

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858 F.2d 467, 473 (9th Cir. 1988). Judicial economy and efficiency favor granting leave

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to file supplemental pleadings, subject to the trial court’s discretion. Volpe, 858 F.2d at

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473. Whether prejudice to the opposing party would arise from allowing a supplemental

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pleading is an important consideration. Id. at 475.

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Discovery in this case closed on October 17, 2019 and dispositive motions are due

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on November 18, 2019. (Doc. 41.) Due to the delay that allowing Plaintiff to supplement

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his Complaint would cause, and the resulting prejudice to Defendants, the Court declines

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to permit Plaintiff to supplement his Complaint. Plaintiff may bring his new claims in a

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separate lawsuit. See Neely, 130 F.3d at 402. The Motions to Supplement will be denied.

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VI.

Motion for Interrogatories

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Plaintiff has filed a Motion for Interrogatories (Doc. 72) that includes as

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attachments copies of interrogatories. Fed. R. Civ. P. 33 governs the use of

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interrogatories in discovery. A party is to serve interrogatories on another party, not

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through a motion to the Court. Fed. R. Civ. P. 33(a). Moreover, Plaintiff has not

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requested the Court to take any action pertaining to his interrogatories, and discovery in

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this case has closed. Therefore, the Motion for Interrogatories will be denied.

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Accordingly,

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IT IS ORDERED that:

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1. Plaintiff’s Motions for Subpoenas (Docs. 64, 65) are denied.

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2. Plaintiff’s Motion for Initial Discovery Waiver (Doc. 66) is denied as moot.

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3. Plaintiff’s Application for Leave to Proceed In Forma Pauperis (Doc. 68) is

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denied as moot.
4. Plaintiff’s Motions to Supplement Pleading (Docs. 67, 69) are denied.

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5. Plaintiff’s Motion for Interrogatories (Doc. 72) is denied.

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Dated this 8th day of November, 2019.

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