Trice v. City of Harrington Police Department
MEMORANDUM ORDER re denying 60 MOTION for Subpoena Duces Tecum filed by William R. Trice, denying 74 MOTION to Amend/Correct 3 Complaint filed by William R. Trice, denying 63 MOTION for Discovery filed by William R. Trice, denying [6 1] MOTION Subpoena Duces Tecum filed by William R. Trice, ORDER, Setting Scheduling Order Deadlines ( Discovery due by 3/9/2015., Dispositive Motions due by 4/9/2015., Answering Brief due 5/11/2015., Reply Brief due 5/25/2015.). Signed by Judge Gregory M. Sleet on 09/08/2014. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Civ. Action No. 11-767-GMS
WILLIAM R. TRICE,
LT. ERIC MALONEY, et ai.,
oAday of ~~r -eWlobe I..
At Wilmington, this 0
,2014, having considered the
pending motions (D.1. 60,61,63, 74).
The plaintiff, William R. Trice ("Trice"), who proceeds pro se and has been granted leave
to proceed without prepayment of fees, filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging
violations of his constitutional rights. Trice is currently confined at the James T. Vaughn
Correctional Center in Smyrna, Delaware.
Following screening, Trice was allowed to proceed against the defendants Harrington
Police Officers Eric Maloney ("Maloney") and Earl K. Brode ("Brode"). The amended
complaint alleges that Maloney accused Trice of violating a no contact order imposed as a
condition ofrelease in Criminal Case No.1 004011070 that was pending in the Superior Court of
the State of Delaware in and for Sussex County. Trice alleges that Maloney signed a false
affidavit in police complaint No. 5510001652 (assigned Criminal Case No. 1006018519) that
charged Trice with noncompliance with conditions of recognizance bond or conditions violation
when Trice entered the property of Ronald Messick ("Messick") in violation of the no contact
order that was issued by the Kent County Superior Court. Trice claims that the location he
entered was not Messick's property. On June 30, 2010, Trice was arrested by Brode and taken
into custody for violating the no contact order. Trice was charged with several other crimes and,
on March 22, 2011, he entered a Robinson plea to rape in the third degree, strangulation, and
tampering with a witness. The remaining charges were nolle prossed, including the charge for
violating the no contact order in Criminal No. 1006018579. See Trice v. State, 36 A.3d 351 (Del.
2012) (table decision); Superior Court Criminal Docket Nos. 1004011070 and 1006018519.
Trice asks the court to issue subpoenas upon non-parties Denise Abbott ("Abbott") and
the Attorney General of the State of Delaware Beau Biden ("Biden"). (See 0.1.60,61.) From
Abbott, Trice seeks "any and all lease agreement information including, but not limited to,
property tax bills, statements, and/or assessments, complaints, notices, andlor amendments that
apply to the physical location or address of 51 California Parkway, Harrington, Delaware 19952;
62 California Parkway, Harrington, Delaware 19952; and 11 Rose Haven Drive, Harrington,
Delaware 19952, from January 1, 2007 through December 31, 2011. (OJ. 60.) Trice seeks the
information "for the exclusive purpose of ... confirming the ... properties were subject to
contractuallease[s] on ... June 20, 2010." (Id. at ~ 1.) Trice seeks from Biden "any and all
relevant records, documents, or tangible things in the possession, custody, and/or control of the
Delaware Department of Justice pursuant to CR 10 #1006018519." (0.1.61.) Trice indicates
that these documents will show that the defendants charged Trice with committing a criminal
action causing unwarranted prosecution that was subsequently nolle prossed. (ld. at ~~ 2-3.)
A federal court has the inherent power to protect anyone from oppressive use of process,
even ifno oppression is actually intended. Badman v. Stark, 139 F.R.O. 601, 605 (M.D. Pa.
1991 ) (citation omitted). In addition, federal courts are not authorized to waive or pay witness
fees for indigent litigants and an inmate proceeding in forma pauperis in a civil action may not
issue subpoenas without paying the required fees. See Jacobs v. Heck, 364 F. App'x 744, 748
(3d Cir. 2010) (court did not err in holding that inmate must pay the fees and costs for any prison
official he wished to subpoena for trial). See also Canady v. Kreider, 892 F. Supp. 668, 670
(M.D. Pa. 1995) (finding that there is no statutory provision authorizing a federal court to waive
or provide for payment of witness fees required by 28 U.S.C. § 1821(a) and holding that "a
litigant proceeding in forma pauperis is required to tender witness fees as provided in § 1821 to
effect service of subpoenas under Rule 45(b)(1)). Here, Trice has not demonstrated his ability to
pay for any costs associated with issuance of the subpoena, such as photocopy fees, witness fees,
or mileage. Moreover, the court finds Trice's requests overly broad and unduly burdensome.
Therefore, the court will deny without prejudice the requests for subpoenas.
Trice also moves the court to order the defendants to provide him "any and all material
information, documents, or tangible things" pursuant to the Federal Rules of Civil Procedure and
which "are intended to be used in chief as defense." (0.1.63.) The requests are overly broad and
unduly burdensome. Accordingly, the court will deny without prejudice the motion for
discovery. (0.1.63.) Trice is admonished that before seeking court intervention to obtain
discovery from a party, he shall utilize the Federal Rules of Civil Procedure.
III. MOTION TO AMEND
Trice moves to amend the complaint to add Delaware Deputy Attorney General Adam D.
Gelof("Gelof') as a defendant. (D.1. 74.) It appears that Gelofwas the prosecutor in Trice's
criminal cases. Trice states that he believes sufficient evidence exists to establish that Gelof
participated in the furtherance of libel and/or constitutional violations while acting under the
color of state law.
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of
course within twenty-one days after serving it or, if the pleading is one to which a responsive
pleading is required, twenty-one days after service of a responsive pleading or twenty-one days
after service of a Rule 12(b), whichever is earlier. Otherwise, a party may amend its pleading
only with the opposing party's written consent or the court's leave. Rule 15 provides that court
should freely give leave to amend when justice so requires.
The Third Circuit has adopted a liberal approach to the amendment of pleadings to ensure
that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco
Chern. Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is
not automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indern., 151 F.R.D. 570,574
(E.D. Pa. 1993). Leave to amend should be granted absent a showing of "undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the allowance of the
amendment, futility of amendment, etc." Farnan v. Davis, 371 U.S. 178, 182 (1962); See also
Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Futility of amendment occurs when the
complaint, as amended, does not state a claim upon which relief can be granted. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). If the proposed
amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the
court may deny leave to amend." Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D.
463,468 (D.N.J. 1990).
Pursuant to D. Del. LR 15.1 (b) when seeking to amend, the proposed amended pleading
shall indicate in what respect it differs from the pleading which it amends, by bracketing or
striking through materials to be deleted and underlining materials to be added. Here, Trice did
not comply with the local rules. Moreover, he alleges in a conclusory manner that Gelof violated
his rights and/or slandered him, with our providing supporting facts.
Finally, based upon the motion, it appears that GeIof is immune from suit. A prosecutor
enjoys absolute immunity from liability for actions taken in connection with judicial proceedings
Oddv. ]VIalone, 538 F.3d 202,208 (3d Cir. 2008) (citations omitted), aff'd sub. nom., Schneyder
v. Smith, 653 F.3d 313 (3d Cir. 2011). This generally means activities conducted in court, such
as presenting evidence or legal arguments. Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994)
(citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Prosecutorial activities outside the
courtroom receive the same protection only if they are "intimately associated with the judicial
phase of the criminal process." Van de Kamp v. Goldstein, 555 U.S. 335,341 (2009) (quoting
Imbler, 424 U.S. at 430). Based upon the information he provides, the court finds Trice's
proposed amendment is futile. Therefore, the court will deny the motion to amend. (D.L 74.)
IT IS THEREFORE ORDERED, as follows:
I. The plaintiffs motions for issuance of subpoenas (D.!. 60,61) are denied without
2. The plaintiffs motion for discovery (D.L 63) is denied without prejudice.
3. The plaintiffs motion to amend is denied. (D.1. 74.)
IT IS FURTHER ORDERED that:
Discovery. All discovery will be initiated so that it will be completed on or
roa LJ.... q ~o 15.
Application by Motion. Any application to the Court will be by written motion
filed with the Clerk.
The parties will not send or deliver any correspondence to Chambers. All
correspondence and pleadings must be filed directly with the Clerk of the Court. It will be the
responsibility of the parties to inform the court of any change of address.
Summary Judgment Motions. All summary judgment motions, with
accompanying briefs and affidavits, if any, will be served and filed on or before
.41ft; \ q,,;) tn r .
The answering brief will be filed on or before M~
)' ) ~ 0 \.$
,and the reply
brief due on or before [i\ "" :2 S, ;(OIS.
5. Any requests for extensions of time as set forth in this Scheduling Order must be made
no later than twenty-one days prior to the expiration oftime
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