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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOHN K. GREEN, 11 12 13 14 15 16 Plaintiff, No. CIV S-10-0162 DAD P vs. C/O GOLDY et al., Defendants. ORDER / Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil 17 rights action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that defendant 18 Goldy used excessive force against him in violation of the Eighth Amendment. The parties 19 appeared before U.S. Magistrate Judge Kendall J. Newman on October 25, 2011, for a settlement 20 conference. The parties did not settle the case at that time. Plaintiff has since filed several 21 motions seeking various forms of relief. Both parties have also filed pretrial statements, which 22 the court will address in a separate pretrial order. 23 First, plaintiff has filed two motions seeking leave to file a supplemental 24 complaint. In his motions, plaintiff contends that he wishes to supplement his complaint with 25 allegations against five new defendants. Plaintiff alleges that when he returned to High Desert 26 State Prison after the settlement conference held in this case, he discovered that his toilet would 1 1 back-up and flood. Plaintiff further alleges that he heard administrative segregation officers 2 mention defendant Goldy’s name a few times, and plaintiff now believes that his cell conditions 3 are a way of retaliating against him for filing a lawsuit against defendant Goldy. Plaintiff claims 4 that for nine days his toilet did not work properly, and his cell floor was covered in waste. 5 Accordingly, plaintiff now wishes to name five administrative segregation officers as defendants 6 in this action and to supplement his original complaint with First Amendment and Eighth 7 Amendment claims against these new defendants. 8 Under Federal Rule of Civil Procedure Rule 15(d), “the court may, on just terms, 9 permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event 10 that happened after the date of the pleading to be supplemented.” See Fed. R. Civ. P. 15(d). 11 “While leave to permit supplemental pleading is favored, it cannot be used to introduce a 12 separate, distinct and new cause of action.” Planned Parenthood of Southern Arizona v. Neely, 13 130 F.3d 400, 402 (9th Cir. 1997) (internal quotation marks and citation omitted). See also 14 Contreraz v. Stockbridge, No. 1:06-cv-01817 LJO SKO PC, 2012 WL 396503 at *1 (E.D. Cal. 15 Feb. 7, 2012) (denying plaintiff’s motion to file supplemental complaint because his proposed 16 supplement allegations gave rise to new causes of action); Gonzales v. Mason, No. C 07-180 SI 17 (pr), 2008 WL 2079195 at *2 (N.D. Cal. May 15, 2008) (denying plaintiff’s motion to file 18 supplemental complaint because the proposed supplement included different defendants and new 19 claims). 20 Here, plaintiff’s proposed supplemental complaint should be the subject of a new 21 and separate cause of action from that presented in this action. Specifically, plaintiff’s proposed 22 supplemental claims are distinct from his original claim of excessive force against defendant 23 Goldy and give rise to new causes of action against different defendants. In addition, allowing 24 plaintiff to pursue his proposed supplemental claims at this juncture of the case would not 25 promote judicial efficiency, the goal of Rule 15(d). See Planned Parenthood, 130 F.3d at 402. 26 Finally, there are no “technical obstacles” to plaintiff bringing a separate action against the new 2 1 defendants listed in his proposed supplemental complaint. Id. Accordingly, the court will deny 2 plaintiff’s motion for leave to file a supplemental complaint without prejudice to raising the 3 claims in a separate action. 4 Next, plaintiff has filed a motion requesting a second settlement conference as 5 well as a motion for leave to use defendant Goldy’s “confidential settlement conference” 6 statement as evidence at trial because the defendant therein purportedly confirmed that plaintiff 7 did not resist the officer while being escorted inside the program office. In defendant Goldy’s 8 pretrial statement, defense counsel has informed the court that further settlement conferences 9 would not be helpful. Accordingly, the court declines to schedule a second settlement 10 conference. As to plaintiff’s request to introduce defendant Goldy’s alleged statement at the 11 settlement conference, under Rule 408 of the Federal Rules of Evidence a party cannot use “a 12 statement made during compromise negotiations” about a disputed claim “either to prove or 13 disprove the validity or amount of [the] claim.” Accordingly, the court will deny plaintiff’s 14 motion for a second settlement conference as well as his motion seeking leave to use defendant 15 Goldy’s purported settlement conference statement as evidence at trial. 16 Finally, plaintiff has filed a motion for an extension of time in which to arrange 17 for a Sergeant K. Gillespie to testify at trial. In addition, plaintiff has filed a motion simply 18 requesting that Sergeant Gillespie appear at trial to testify about the proper protocol to be used by 19 correctional officers when escorting an inmate. Plaintiff is reminded that in the court’s 20 scheduling order the court explained the procedures for obtaining the attendance of 21 unincarcerated witnesses who agree to testify voluntarily as well as the procedures for obtaining 22 the attendance of unincarcerated witnesses who refuse to testify voluntarily. If Sergeant Gillespie 23 agrees to testify at trial voluntarily, it is plaintiff’s responsibility to notify him of the time and 24 date of trial. In that case, plaintiff need not seek or obtain action from the court. If Sergeant 25 Gillespie refuses to testify voluntarily, not earlier than four weeks and not later than two weeks 26 before trial, plaintiff must prepare and submit to the United States Marshal a subpoena for 3 1 service by the Marshal upon the witness. Also, plaintiff must tender an appropriate sum of 2 money to the witness through the United States Marshal. Accordingly, the court will deny 3 plaintiff’s motions for relief related to Sergeant K. Gillespie. If plaintiff wishes to call Sergeant 4 Gillespie as a witness at trial, he should follow the procedures outlined herein. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s motions for leave to file a supplemental complaint (Doc. Nos. 56 & 7 60) are denied without prejudice to raising the claims in a separate cause of action; 8 2. Plaintiff’s motion for a second settlement conference (Doc. No. 57) is denied; 9 3. Plaintiff’s motion for leave to use defendant Goldy’s “confidential settlement 10 conference” statement as evidence (Doc. No. 58) is denied; and 11 4. Plaintiff’s motions for relief related to Sergeant K. Gillespie’s witness 12 testimony (Doc. Nos. 59 & 62) are denied. 13 DATED: March 21, 2012. 14 15 16 17 DAD:9 gree0162.mots 18 19 20 21 22 23 24 25 26 4

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