McMillan v. Pfile, et al.

Filing 130

ORDER signed by Magistrate Judge Kendall J. Newman on 9/27/2018 DENYING without prejudice plaintiff's 116 motion for leave to file a supplemental complaint, construed as a motion in limine. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWIN McMILLAN,

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No. 2:13-cv-0578 MCE KJN P

Plaintiff,
v.

ORDER

S. RINGLER, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action is set for a settlement conference before Magistrate Judge

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Brennan on November 15, 2018. If this action does not settle, a jury trial will be scheduled.

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Pending before the court is plaintiff’s motion for leave to file a supplemental complaint.

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(ECF No. 116.) For the reasons stated herein, the undersigned construes this motion as a motion

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in limine and denies it as premature without prejudice.

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On February 14, 2018, the court granted in part and denied in part defendants’ summary

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judgment motion. (ECF No. 106.) This action now proceeds as to the following claims against

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defendants Zuniga, Ringler and Scotland. In claim one, plaintiff alleges that on December 5,

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2012, defendants Ringler and Zuniga searched his cell in retaliation for his legal activities. In

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claim one, plaintiff also alleges that defendant Scotland had knowledge of the alleged retaliatory

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search before it occurred. In claim two, plaintiff alleges that during the December 5, 2012 cell
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search, defendants Zuniga and Ringler destroyed his Holy Korans in retaliation for his legal

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activities.

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In claim three, plaintiff alleges that on January 17, 2013, defendant Ringler issued a

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chrono against plaintiff in retaliation for his legal activities. The chrono stated that plaintiff

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created and posted bulletins containing false information. The chrono stated that defendant

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Scotland told him (defendant Ringler) that the bulletins contained accusations against defendant

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Ringler. The chrono stated that since their posting, several inmates had approached defendant

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Ringler and asked him to elaborate on their content. The chrono stated that releasing plaintiff to

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the general population would pose a threat to safety. Finally, defendant Ringler requested that

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plaintiff be transferred to a different institution.

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In claim four, plaintiff alleges that defendant Ringler confiscated his personal property

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following the December 5, 2012 cell search in retaliation for his legal activities. In claim five,

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plaintiff alleges two claims pursuant to the California Bane Act, i.e., California Civil Code

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§ 52.1(a). First, plaintiff alleges that defendants Ringler, Zuniga and Scotland conspired to

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retaliate against him for his legal activities by destroying and desecrating his Holy Korans.

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Second, plaintiff alleges that defendants Ringler and Zuniga conspired to interfere with his

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religious beliefs by destroying and desecrating his Holy Korans.

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In the proposed supplemental complaint, plaintiff seeks to add claims alleging that he was

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issued two rules violation reports because of defendant Ringler’s January 17, 2013 chrono.

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Plaintiff alleges that after defendant Ringler issued the January 17, 2013 chrono, plaintiff was

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issued a rules violation report charging him with “misuse of a state computer.” (ECF No. 116 at

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2.) These charges were based on plaintiff’s alleged use of a state computer to prepare the

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bulletins discussed in defendant Ringler’s January 17, 2013 chrono. (Id.) Plaintiff also alleges

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that based on defendant Ringler’s January 17, 2013 chrono, plaintiff was moved from the general

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population to administrative segregation (“ad seg”). (Id.) Plaintiff alleges that prior to his

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transfer to ad seg, Officer Ruiz searched his property and found an electrical charger. (Id.)

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Plaintiff was issued another rules violation report for possession of dangerous contraband, i.e., the

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electrical charger. (Id.)
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In the proposed supplemental complaint, plaintiff seeks expungement of these rules
violation reports from his central file. (Id.)

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In the proposed supplemental complaint, plaintiff also alleges that the Board of Parole

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Hearings (“BPH”) denied his request to advance his parole date, based on the rules violation

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reports charging him with misuse of a state computer and possession of dangerous contraband.

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Plaintiff alleges that on January 28, 2009, he was denied parole for ten years. (Id. at 7.) On

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August 26, 2016, plaintiff submitted a petition to advance his parole date. (Id. at 2.) Plaintiff

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alleges that on September 7, 2016, the “Board” denied this request based, in part, on the two rules

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violation charges he received as a result of defendant Ringler’s January 17, 2013 chrono. (Id. at

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3.)
In the opposition to the motion for leave to file a supplemental complaint, defendants first

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argue that the motion should be denied because plaintiff is seeking to add previously dismissed

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claims and defendants. In the second amended complaint, plaintiff claimed that R. Muldong

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issued the rules violation report charging him with misuse of a state computer in retaliation for

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plaintiff’s legal activities. (ECF No. 55 at 7-8.) In the second amended complaint, plaintiff also

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alleged that Officer Ruiz conspired with defendant Ringler to retaliate against plaintiff for his

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legal activities when he conducted the search which led to the discovery of the electrical charger.

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(Id. at 13.) On March 31, 2016, these claims were dismissed for failing to state potentially

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colorable claims for relief. (ECF No. 65.)

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While the proposed supplemental complaint discusses other prison officials, defendants

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Ringler, Zuniga and Scotland are the only defendants named in the proposed supplemental

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complaint. (ECF No. 116 at 11.) Thus, it does not appear that plaintiff is attempting to re-litigate

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the previously dismissed claims against R. Muldong and Officer Ruiz.

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In the supplemental complaint, plaintiff alleges that he received the two rules violation

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reports because of defendant Ringler’s allegedly retaliatory chrono. Plaintiff also claims that the

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BPH denied his petition to advance his parole date, in part, because of the two rules violation

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reports. Thus, plaintiff does not appear to be raising a new claim against defendant Ringler.

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Instead, plaintiff is seeking damages and injunctive relief based on the rules violation reports and
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the denial of his petition to advance his parole date, which were allegedly caused by defendant

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Ringler’s allegedly retaliatory chrono. For this reason, the undersigned construes plaintiff’s

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motion to file a supplemental complaint as a motion in limine, requesting that he be allowed to

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present evidence regarding the rules violation reports and the petition to advance his parole date,

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in support of his claim for damages. See Goodman v. Las Vegas Metro Dept., 963 F.Supp.2d

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1036, 1046 (D. Nev. 2013) (a motion in limine “is a procedural device to obtain an early and

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preliminary ruling on the admissibility of evidence.”); reversed on other grounds by Goodman v.

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Las Vegas Metro Dept., 613 Fed.Appx. 610 (9th Cir. 2015).

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Plaintiff’s motion in limine is premature because no trial date has been set. If this action

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does not settle, Judge England will issue an order setting the date for the filing of motions in

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limine.

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Accordingly, IT IS HEREBY ORDERED plaintiff’s motion for leave to file a

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supplemental complaint (ECF No. 116), construed as a motion in limine, is denied without

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prejudice.

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Dated: September 27, 2018

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Mcmill578.supp

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