Green v. Goldy et al

Filing 66

ORDER signed by Magistrate Judge Dale A. Drozd on 3/21/12 ORDERING that Plaintiffs motions for leave to file a supplemental complaint 56 & 60 are denied without prejudice to raising the claims in a separate cause of action; Plaintiffs motion for a second settlement conference 57 is denied; Plaintiffs motion for leave to use defendant Goldys confidential settlement conference statement as evidence 58 is denied; and Plaintiffs motions for relief related to Sergeant K. Gillespies witness testimony 59 & 62 are denied. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN K. GREEN,

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Plaintiff,

No. CIV S-10-0162 DAD P

vs.
C/O GOLDY et al.,
Defendants.

ORDER
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil

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rights action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that defendant

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Goldy used excessive force against him in violation of the Eighth Amendment. The parties

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appeared before U.S. Magistrate Judge Kendall J. Newman on October 25, 2011, for a settlement

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conference. The parties did not settle the case at that time. Plaintiff has since filed several

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motions seeking various forms of relief. Both parties have also filed pretrial statements, which

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the court will address in a separate pretrial order.

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First, plaintiff has filed two motions seeking leave to file a supplemental

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complaint. In his motions, plaintiff contends that he wishes to supplement his complaint with

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allegations against five new defendants. Plaintiff alleges that when he returned to High Desert

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State Prison after the settlement conference held in this case, he discovered that his toilet would
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back-up and flood. Plaintiff further alleges that he heard administrative segregation officers

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mention defendant Goldy’s name a few times, and plaintiff now believes that his cell conditions

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are a way of retaliating against him for filing a lawsuit against defendant Goldy. Plaintiff claims

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that for nine days his toilet did not work properly, and his cell floor was covered in waste.

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Accordingly, plaintiff now wishes to name five administrative segregation officers as defendants

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in this action and to supplement his original complaint with First Amendment and Eighth

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Amendment claims against these new defendants.

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Under Federal Rule of Civil Procedure Rule 15(d), “the court may, on just terms,

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permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event

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that happened after the date of the pleading to be supplemented.” See Fed. R. Civ. P. 15(d).

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“While leave to permit supplemental pleading is favored, it cannot be used to introduce a

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separate, distinct and new cause of action.” Planned Parenthood of Southern Arizona v. Neely,

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130 F.3d 400, 402 (9th Cir. 1997) (internal quotation marks and citation omitted). See also

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Contreraz v. Stockbridge, No. 1:06-cv-01817 LJO SKO PC, 2012 WL 396503 at *1 (E.D. Cal.

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Feb. 7, 2012) (denying plaintiff’s motion to file supplemental complaint because his proposed

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supplement allegations gave rise to new causes of action); Gonzales v. Mason, No. C 07-180 SI

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(pr), 2008 WL 2079195 at *2 (N.D. Cal. May 15, 2008) (denying plaintiff’s motion to file

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supplemental complaint because the proposed supplement included different defendants and new

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claims).

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Here, plaintiff’s proposed supplemental complaint should be the subject of a new

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and separate cause of action from that presented in this action. Specifically, plaintiff’s proposed

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supplemental claims are distinct from his original claim of excessive force against defendant

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Goldy and give rise to new causes of action against different defendants. In addition, allowing

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plaintiff to pursue his proposed supplemental claims at this juncture of the case would not

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promote judicial efficiency, the goal of Rule 15(d). See Planned Parenthood, 130 F.3d at 402.

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Finally, there are no “technical obstacles” to plaintiff bringing a separate action against the new
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defendants listed in his proposed supplemental complaint. Id. Accordingly, the court will deny

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plaintiff’s motion for leave to file a supplemental complaint without prejudice to raising the

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claims in a separate action.

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Next, plaintiff has filed a motion requesting a second settlement conference as

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well as a motion for leave to use defendant Goldy’s “confidential settlement conference”

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statement as evidence at trial because the defendant therein purportedly confirmed that plaintiff

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did not resist the officer while being escorted inside the program office. In defendant Goldy’s

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pretrial statement, defense counsel has informed the court that further settlement conferences

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would not be helpful. Accordingly, the court declines to schedule a second settlement

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conference. As to plaintiff’s request to introduce defendant Goldy’s alleged statement at the

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settlement conference, under Rule 408 of the Federal Rules of Evidence a party cannot use “a

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statement made during compromise negotiations” about a disputed claim “either to prove or

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disprove the validity or amount of [the] claim.” Accordingly, the court will deny plaintiff’s

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motion for a second settlement conference as well as his motion seeking leave to use defendant

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Goldy’s purported settlement conference statement as evidence at trial.

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Finally, plaintiff has filed a motion for an extension of time in which to arrange

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for a Sergeant K. Gillespie to testify at trial. In addition, plaintiff has filed a motion simply

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requesting that Sergeant Gillespie appear at trial to testify about the proper protocol to be used by

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correctional officers when escorting an inmate. Plaintiff is reminded that in the court’s

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scheduling order the court explained the procedures for obtaining the attendance of

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unincarcerated witnesses who agree to testify voluntarily as well as the procedures for obtaining

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the attendance of unincarcerated witnesses who refuse to testify voluntarily. If Sergeant Gillespie

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agrees to testify at trial voluntarily, it is plaintiff’s responsibility to notify him of the time and

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date of trial. In that case, plaintiff need not seek or obtain action from the court. If Sergeant

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Gillespie refuses to testify voluntarily, not earlier than four weeks and not later than two weeks

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before trial, plaintiff must prepare and submit to the United States Marshal a subpoena for
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service by the Marshal upon the witness. Also, plaintiff must tender an appropriate sum of

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money to the witness through the United States Marshal. Accordingly, the court will deny

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plaintiff’s motions for relief related to Sergeant K. Gillespie. If plaintiff wishes to call Sergeant

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Gillespie as a witness at trial, he should follow the procedures outlined herein.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motions for leave to file a supplemental complaint (Doc. Nos. 56 &

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60) are denied without prejudice to raising the claims in a separate cause of action;

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2. Plaintiff’s motion for a second settlement conference (Doc. No. 57) is denied;

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3. Plaintiff’s motion for leave to use defendant Goldy’s “confidential settlement

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conference” statement as evidence (Doc. No. 58) is denied; and

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4. Plaintiff’s motions for relief related to Sergeant K. Gillespie’s witness

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testimony (Doc. Nos. 59 & 62) are denied.

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DATED: March 21, 2012.

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DAD:9
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