Steward v. Thumser et al

Filing 65

ORDER signed by Magistrate Judge Kendall J. Newman on 9/13/2018 DENYING 61 Motion to Compel; DENYING 62 Request to Propound Additional Interrogatories; and DENYING without prejudice 62 Motion to Amend. If plaintiff chooses to again seek leave to amend, plaintiff must file his motion to amend, accompanied by his proposed amended pleading, within 30 days from the date of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONNY STEWARD, 12 13 14 15 No. 2:16-cv-1232 TLN KJN P Plaintiff, v. ORDER G. THUMSER, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se. This action proceeds on plaintiff’s claims 18 that on December 12, 2013, defendants Olson, Harrison, Pompey, Tapiz, and Jones used 19 excessive force and failed to protect plaintiff when an allegedly excessive amount of pepper spray 20 was used on plaintiff while he was engaged in a fight with another inmate, and allegedly used hot 21 water to decontaminate plaintiff thereafter. (ECF No. 15.) 22 Motion to Compel 23 On August 14, 2018, the undersigned partially granted plaintiff’s motion to propound 24 additional interrogatories. On August 21, 2018, plaintiff signed a motion to compel in which he 25 seeks a court order requiring defendants to respond to all of the additional interrogatories. 26 Defendants oppose plaintiff’s motion, arguing that it is premature, moot and unintelligible. 27 28 Defendants’ position is well-taken. Plaintiff’s motion to propound additional interrogatories was only partially granted, and defendants were granted thirty days in which to 1 1 respond to interrogatories 26, 35 through 38, and 42. Thus, plaintiff’s motion to compel was 2 prematurely filed and is denied. 3 Motion to Amend 4 In addition, on September 4, 2018, plaintiff filed a document entitled “Notice of Motion to 5 Amend and Addendum.” (ECF No. 62.) In this motion, plaintiff also discusses his motion for 6 leave to propound interrogatories. However, as stated above, the court ruled on plaintiff’s motion 7 on August 14, 2018. It is unclear whether plaintiff is attempting to revisit the discovery issues 8 resolved by the August 14, 2018 order, or whether plaintiff is attempting to explain why he needs 9 to amend his pleading. Plaintiff does ask the court to grant plaintiff an additional 45 days in 10 which “to submit a new line of interrogatories in preparation for pretrial and raise the general 11 public awareness of the kind of sadistic malicious and brute excessive force [that plaintiff] and 12 thousands of inmates suffer in the CDCR system and what’s being done about the problem of the 13 inefficient and extremely dangerous use of O.C. MK-9 pepper spray.” (ECF No. 62 at 13.) 14 Plaintiff then reiterates the facts of his underlying action, and appears to appeal to the court to add 15 additional parties as defendants, as well as new claims. 16 First, plaintiff has failed to show good cause why he should be granted leave to propound 17 additional interrogatories, particularly where he already propounded 25 interrogatories, and was 18 granted leave to propound six more. Plaintiff’s request is denied. 19 Second, plaintiff has failed to provide a separate proposed third amended complaint that 20 clearly sets forth the named defendants and the proposed causes of action. An amended pleading 21 must make clear who plaintiff is naming as a defendant, and what plaintiff claims each defendant 22 did that allegedly violated his constitutional rights. The proposed amended pleading must be 23 separate from plaintiff’s motion to amend. Fed. R. Civ. P. 15; 28 U.S.C. § 1915. 24 The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d 25 1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any 26 heightened pleading standard in cases other than those governed by Rule 9(b).”); Fed. R. Civ. P. 27 84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Plaintiff’s claims must be 28 set forth in short and plain terms, simply, concisely and directly. See Swierkiewicz v. Sorema 2 1 N.A., 534 U.S. 506, 514 (2002) (“Rule 8(a) is the starting point of a simplified pleading system, 2 which was adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. Plaintiff must 3 eliminate from plaintiff’s pleading all preambles, introductions, argument, speeches, 4 explanations, stories, griping, vouching, evidence, attempts to negate possible defenses, 5 summaries, and the like. McHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (affirming 6 dismissal of § 1983 complaint for violation of Rule 8 after warning); see Crawford-El v. Britton, 7 523 U.S. 574, 597 (1998) (reiterating that “firm application of the Federal Rules of Civil 8 Procedure is fully warranted” in prisoner cases). Plaintiff should not include explanations or 9 information concerning interrogatories; rather, he must briefly set forth the facts supporting each 10 cause of action. The court (and defendant) should be able to read and understand plaintiff’s 11 pleading within minutes. McHenry, 84 F.3d at 1177. A long, rambling pleading, including many 12 defendants with unexplained, tenuous or implausible connection to the alleged constitutional 13 injury or joining a series of unrelated claims against many defendants very likely will result in 14 delaying the review required by 28 U.S.C. § 1915 and an order dismissing plaintiff’s action 15 pursuant to Fed. R. Civ. P. 41 for violation of these instructions. 16 Third, this action was filed in 2016, and plaintiff has already amended his pleading on 17 several occasions. Absent facts not present here, the court is not inclined to allow plaintiff to 18 amend again. Thus, to avoid further delay, plaintiff’s proposed third amended complaint must be 19 accompanied by a motion to amend that shows good cause why he needs to amend his pleading 20 again, and at such a late date. If plaintiff chooses to again seek leave to amend, he must file his 21 motion to amend, along with his proposed amended pleading, within thirty days from the date of 22 this order. 23 Fourth, plaintiff may only add claims or defendants properly joined under Federal Rule of 24 Civil Procedure 20(a) concerning joinder of claims and defendants. A plaintiff may properly 25 assert multiple claims against a single defendant. Fed. Rule Civ. P. 18. In addition, a plaintiff 26 may join multiple defendants in one action where “any right to relief is asserted against them 27 jointly, severally, or in the alternative with respect to or arising out of the same transaction, 28 occurrence, or series of transactions and occurrences” and “any question of law or fact common 3 1 to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated claims against 2 different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 3 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a multiple 4 claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the required filing 5 fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals 6 that any prisoner may file without prepayment of the required fees. 28 U.S.C. § 1915(g).” 7 George, 507 F.3d at 607. Here, this action proceeds on plaintiff’s claims that defendants used excessive force and 8 9 failed to protect plaintiff on December 12, 2013. Unless plaintiff can demonstrate that his 10 proposed new claims or new defendants are properly related to the December 12, 2013 incident, 11 plaintiff must pursue his proposed new claims or new defendants in a separate action. Plaintiff is 12 not granted leave to add new claims or defendants unrelated to the December 12, 2013 incident. 13 Fourth, plaintiff asks the court to allow him to charge inmate Nunez with assault and 14 battery with the intent to cause great bodily harm under California Penal Code § 245. However, 15 criminal statutes do not give rise to civil liability. Allen v. Gold Country Casino, 464 F.3d 1044, 16 1048 (9th Cir. 2006). Thus, plaintiff’s request is denied. 17 For all the above reasons, plaintiff’s motion to amend is denied without prejudice. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motion to compel (ECF No. 61) is denied; 20 2. Plaintiff’s request to propound additional interrogatories (ECF No. 62) is denied; and 21 3. Plaintiff’s motion (ECF No. 62) is denied without prejudice. If plaintiff chooses to 22 again seek leave to amend, plaintiff must file his motion to amend, accompanied by his proposed 23 amended pleading, within thirty days from the date of this order. Any proposed third amended 24 complaint must be filed on the court’s form, and may not exceed 15 pages. Plaintiff’s proposed 25 third amended complaint shall comply with the requirements of the Civil Rights Act, the Federal 26 //// 27 //// 28 //// 4 1 Rules of Civil Procedure, and the Local Rules of Practice. The proposed third amended 2 complaint must also bear the docket number assigned to this case and must be labeled “Proposed 3 Third Amended Complaint.” 4 Dated: September 13, 2018 5 6 7 /stew1232.mtc2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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