Hicks v. Evans

Filing 63

ORDER (SI, COURT STAFF) (Filed on 7/7/2011) (Additional attachment(s) added on 7/7/2011: # 1 Envelope) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL J. HICKS,

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No. C 08-1146 SI (pr)

Plaintiff,

ORDER

v.
M. S. EVANS, warden,
Defendant.
/
On June 29, 2011, the court issued an order addressing a service of process problem and several
miscellaneous matters. The case returns for the court's attention to new miscellaneous matters.

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Plaintiff filed an "ex parte notice of failure to render process of service upon defendant J. Battin,"

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in which he requested that the court "insure that defendant J. Battin is served." (Docket # 62.) As

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explained in the June 29 order, it is plaintiff's responsibility to provide sufficient information as to the

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identity and whereabouts of a defendant so that the Marshal is able to serve process on him. Plaintiff

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must comply with the directions in the June 29 order to provide the court with defendant Battin's current

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address no later than August 1, 2011. He is once again cautioned that, if he does not provide a current

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address for Battin by the deadline, or if Battin cannot be served at the address plaintiff does provide,

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Battin will be dismissed without prejudice from this action.

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Plaintiff also filed an "ex parte motion to file third amended complaint," but failed to attach any

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proposed third amended complaint to the motion. (Docket # 61.) Federal Rule of Civil Procedure 15(a)

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provides that leave to amend should be freely given when justice so requires but the court cannot make

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that determination without seeing the proposed new pleading. See Lake v. Arnold, 232 F.3d 360, 374

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(3d Cir. 2000) ("Obviously, without this draft complaint, the District Court cannot evaluate the merits
of a plaintiff's request . . . [T]he court had nothing upon which to exercise its discretion.") The motion

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to file a third amended complaint is DENIED without prejudice because plaintiff failed to attach the

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proposed new pleading. (Docket # 61.) Regardless of whether plaintiff intends to file yet another

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motion to amend, he must comply with the briefing schedule for defendants' pending motion to dismiss

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as well as the deadline for providing the unserved defendant's address.

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Plaintiff has filed an excessive number of documents that seek to have the court revisit matters

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already decided. In the last four months, he has sent letters and motions (e.g., docket # 39, # 49, and

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# 50) regarding matters the court already decided and/or requesting reconsideration, and has sent other

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requests (e.g., docket # 40, # 45, # 46, and # 49) based on his misreading of earlier orders. Plaintiff

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should not be so quick to seek reconsideration or to re-argue matters already decided against him. If

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a litigant disagrees with the court's rulings, he may argue his point on appeal.

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reconsideration in the district court should be filed sparingly, and only when the litigant identifies newly

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discovered evidence, a specific mistake of law, or a manifest injustice. Requests from a litigant that are

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made due to his misreading of court orders waste limited resources because the court must read and

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respond to these unnecessary filings. At a certain point, repeated requests based on misreading of court

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orders begin to look like malicious/vexatious litigation and may result in sanctions.

Motions for

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Defendants' motion to stay discovery pending resolution of their motion to dismiss is

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GRANTED. (Docket # 59.) Defendants’ motion to dismiss raises the qualified immunity defense. The

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U.S. Supreme Court has made it abundantly clear that a district court should stay discovery until the

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threshold question of qualified immunity is settled. See Crawford-El v. Britton, 523 U.S. 574, 598

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(1998); Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818

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(1982). All discovery is STAYED until the court rules on the motion to dismiss. This ruling means that

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plaintiff must prepare his opposition to the motion to dismiss without the benefit of any discovery he

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has requested from defendants but that they have not yet provided.

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In connection with the motion to stay discovery, the court quickly reviewed the motion to

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dismiss to confirm that it did indeed raise a qualified immunity defense and discovered an apparent

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problem in the supporting evidence for the motion to dismiss. Specifically, defendants have asked the

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court to take judicial notice of the CDCR's records of plaintiff's inmate appeals. The court can judicially

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notice facts that are not subject to reasonable dispute in that they are generally known within the
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territorial jurisdiction of the court or they are capable of ready determination by resort to sources whose

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accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). The CDCR's records of plaintiff's

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inmate appeals do not appear to be judicially noticeable documents because they are subject to

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reasonable dispute. None of the cases cited by defendants in their request for judicial notice authorize

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judicial notice of inmate appeal records. Brown v. Valoff, 422 F.3d 926, 931 n.7 (9th Cir. 2005), did

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take judicial notice of a CDCR document, but it was the Department Operations Manual, which is an

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official publication of the CDCR and quite different from inmate records. Even though the inmate

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records are not judicially noticeable, it is an easy problem to fix. The CDCR's records of plaintiff's

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inmate appeals can be presented as an attachment to a declaration from a custodian of records for use

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in the unenumerated Rule 12(b) challenge for non-exhaustion. If defendants want to present such a

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declaration in support of their motion to dismiss, they must file the declaration no later than July 29,

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2011, so that plaintiff will receive it with ample time to consider it as he prepares his opposition to the

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motion to dismiss – an opposition that is due on September 23, 2011.

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IT IS SO ORDERED.
Dated: July 7, 2011

_______________________
SUSAN ILLSTON
United States District Judge

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