Hooks v. Bannister et al

Filing 50

ORDER denying 26 , 29 , and 47 motions; denying without prejudice 42 motion; denying as unnecessary 33 and 44 motions; granting to an extent 48 motion; granting 27 and 30 motions (documents mailed to plaintiff 2/19/2014); granting 1 IFP application. Initial partial filing fee not required. NDOC to pay clerk from inmate account. The clerk shall send a copy of this order to the Clerk's Office Finance Division (NEF sent 2/19/2014) and the NDOC Chief of Inmate Services (mailed 2/19/2014). The previously entered stay is lifted. AG to advise court within 21 days regarding service. Answer due within 60 days for any defendants represented. Plaintiff shall serve defendants copy of all pleadings. See order for further details. Signed by Judge Robert C. Jones on 02/18/2014. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8

JERRY HOOKS,
#87495,

9

3:12-cv-00682-RCJ-WGC
Plaintiff,

10
vs.
11
12
13

ORDER
BRUCE BANNISTER, et al.
Defendants.

14
15

This prisoner civil rights action comes before the Court following a stay for mediation

16

efforts and further upon multiple pending motions (## 1, 26, 27, 29, 30, 33, 42, 44, 47 and 48)

17

described with greater particularity herein.

18

Motion to Amend (#42)

19

Plaintiff’s motion (#42) to amend the complaint will be denied without prejudice.

20

As the Ninth Circuit has explained, a pleading that says too much can violate federal

21
22
23
24
25
26
27
28

pleading rules just as can a pleading that says too little:
. . . . Rule 8 requires that a pleading “must contain” a
“short and plain statement” of the grounds for jurisdiction and the
claim, as well as a demand for relief sought. Fed.R.Civ.P. 8(a).
Violations of this Rule warrant dismissal, but there are multiple
ways that it can be violated. One well-known type of violation is
when a pleading says too little — the baseline threshold of factual
and legal allegations required was the central issue in the Iqbal
line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Rule is also violated,
though, when a pleading says too much. Cafasso, U.S. ex rel. v.
Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011)
(“[W]e have never held—and we know of no authority supporting
the proposition—that a pleading may be of unlimited length and

1
2
3
4

opacity. Our cases instruct otherwise.”) (citing cases); see also
McHenry v. Renne, 84 F.3d 1172, 1179–80 (9th Cir.1996)
(affirming a dismissal under Rule 8, and recognizing that “[p]rolix,
confusing complaints such as the ones plaintiffs filed in this case
impose unfair burdens on litigants and judges”).
Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013).

5

The 63-page proposed pleading presented with the motion to amend presents a

6

paradigm case of an overly prolix and confusing pleading that violates the short and plain

7

statement rule of Rule 8. For example, it is no clearer twenty pages into Count I than it is on

8

the first page of the count what specific constitutional claim or claims that the count alleges.

9

The pleading instead reads as a stream of consciousness rant rather than as a statement of

10

a legal claim or claims. Moreover, the allegations of the proposed amended complaint are

11

interspersed with legal argument and citation to legal authority. A pleading is used to allege

12

the facts supporting a claim for relief; it is not a proper place for legal argument and citation.

13

The proposed pleading is suitable neither for screening nor for service for a response.

14

The Court therefore will deny the motion to amend without prejudice.

15

If plaintiff seeks to amend the complaint again, he should note the following. First, the

16

instructions for the Court’s required civil rights complaint form, with which plaintiff must

17

comply, provide that only one constitutional claim may be included within a count. Plaintiff

18

may not include multiple constitutional claims within one count as he appears to do in the

19

present proposed pleading. Second, the Court will limit plaintiff to only two additional pages

20

per count in addition to the beginning page for each count from the complaint form.

21
22
23
24
25

Meanwhile, the Court will direct that the stay be lifted and that the matter proceed
forward on the pleadings as they currently stand.
Motions to Amend Screening Order (## 47 & 48)
Plaintiff’s motion (#48) to amend his motion to amend the scheduling order will be
granted only to the extent of allowing plaintiff to amend the motion.

26

Plaintiff’s motion (#47) to amend the screening order, as amended, will be denied. The

27

motion seeks reconsideration of, inter alia: (a) the dismissal of Count VI of the amended

28

complaint (#15) as duplicative of Count IV; and (b) the dismissal of Count IV without prejudice
-2-

1

for failure to state a claim, but subject to leave to amend. The Court is not persuaded on the

2

showing made that the prior order was incorrect. The Court notes again that the dismissal

3

of Count IV was without prejudice and subject to leave to amend to correct the deficiencies

4

identified in the screening order.

5

Remaining Motions (## 26-27, 29-30, 33 & 44)

6

Plaintiff’s motion (#26) to raise his copy credit limit will be denied on the showing

7

made. The Court does not approve blanket, open-ended requests to raise an inmate’s copy

8

credit limit based upon a form motion. Plaintiff did not attach a copy of a response showing

9

that a request to copy legal materials had been denied because he had no remaining copy

10

credit. Nor did plaintiff seek a specific amount for additional copies for a particular need.

11

Plaintiff refers broadly to a need to make a multitude of copies for service. However, in this

12

District, formal service is necessary only for defendants as to whom the Nevada Attorney

13

General does not accept service following informal electronic service. Moreover, plaintiff will

14

not be required to make photocopies of pleadings for service by the Marshal. The record in

15

this matter further reflects – extensively – that any limits on the extent to which plaintiff is able

16

to make legal copies has not prevented him from accessing the court.

17

Plaintiff’s motion (#29) to allow legal purchases also will be denied on the showing

18

made. Plaintiff seeks to be allowed to purchase “legal material (i.e. books) unavailable

19

through either of the prison libraries.” The First Amendment requires only that inmates be

20

able to access the courts; it does not mandate that inmates be provided a particular set of

21

legal resources, including particular legal books. See Lewis v. Casey, 518 U.S. 343, 350-51

22

& 354-55 (1996). The Constitution thus does not require that an inmate be allowed to obtain

23

unspecified books simply because they are unavailable in the prison law library. Again, the

24

record in this matter reflects, extensively, that plaintiff has been able to access the court with

25

the resources available to him. To the further extent that plaintiff has an issue with how a

26

book order that he placed was handled at the prison, he may pursue such an issue only within

27

a claim for relief in a pleading filed in an appropriate state or federal action. The Court will

28

not address a claim for relief presented by motion rather than properly in a pleading.
-3-

1

Plaintiff’s motions (## 27 & 30) seeking copies of filings herein will be granted to the

2

extent that the Court will direct the Clerk to provide plaintiff a copy of his prior pleadings and

3

proposed pleadings as well as of the docket sheet.

4

Plaintiff’s motion (#33) to extend the time to file a proof that the complaint has been

5

served will be denied as unnecessary. In this type of case, plaintiff’s time to serve defendants

6

does not begin to run until after the Nevada Attorney General has filed a notice in response

7

to this order that the Attorney General is not accepting service for a particular defendant or

8

defendants.

9

Plaintiff’s second (#44) application to proceed in forma pauperis will be denied as

10

unnecessary as the Court will grant the first pauper application (#1). Plaintiff does not need

11

to file a new pauper application with each pleading. The first pauper application suffices.

12

IT THEREFORE IS ORDERED that: (a) plaintiff’s motion (#42) to amend is DENIED

13

without prejudice; (b) plaintiff’s motion (#48) to amend his motion (#47) to amend the

14

screening order is GRANTED to the extent that the Court allows plaintiff to amend the motion;

15

(c) the motion (#47) to amend the screening order, as amended, is DENIED; (d) the motion

16

(#26) to raise the prison copywork limit and motion (#29) to allow legal purchases both are

17

DENIED on the showing made; and (e) the motion (#33) to extend time to file proof of service

18

and second application (#44) for leave to proceed in forma pauperis both are DENIED as

19

unnecessary.

20

IT FURTHER IS ORDERED that the motions (## 27 & 30) for copies are GRANTED

21

to the extent that the Clerk shall SEND plaintiff a copy of the docket sheet, copies of prior

22

pleadings and proposed pleadings (i.e., ## 1-1, 3, 14 & 45), and four blank complaint forms.

23

IT FURTHER IS ORDERED:

24

1.

That, upon the Court’s finding that plaintiff is unable to pay a substantial initial

25

partial filing fee, the first application (#1) to proceed in forma pauperis is GRANTED, subject

26

to the remaining provisions herein. Plaintiff shall not be required to pay an initial partial filing

27

fee. However, even if this action is dismissed, the full $350.00 filing fee still must be paid

28

pursuant to 28 U.S.C. § 1915(b)(2).
-4-

1

2.

That plaintiff is permitted to maintain this action to a conclusion without the

2

necessity of prepayment of any additional fees or costs or the giving of security therefor. This

3

order granting in forma pauperis status shall not extend to the issuance of subpoenas at

4

government expense.

5

3.

That, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of

6

Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20%

7

of the preceding month's deposits to plaintiff's account (in the months that the account

8

exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk shall

9

SEND a copy of this order to the Finance Division of the Clerk's Office. The Clerk shall also

10

SEND a copy of this order to the attention of the Chief of Inmate Services for the Nevada

11

Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

12

4.

That the stay previously entered herein is LIFTED and that, within twenty-one

13

(21) days of entry of this order, the Attorney General's Office shall file a notice advising the

14

Court and plaintiff of: (a) the names of the defendant(s) for whom it accepts service; (b) the

15

names of the defendant(s) for whom it does not accept service, and (c) the names of the

16

defendant(s) for whom it is filing last-known-address information under seal. As to any of the

17

named defendant(s) for whom the Attorney General's Office cannot accept service, the Office

18

shall file, under seal, the last known address(es) of those defendant(s) for whom it has such

19

information.

20

5.

If service cannot be accepted for any of the named defendant(s), plaintiff shall

21

file a motion identifying the unserved defendant(s), requesting issuance of a summons, and

22

specifying a full name for the defendant(s). For the defendant(s) as to which the Attorney

23

General has not provided last-known-address information, plaintiff shall provide the full name

24

and address for the defendant(s).

25

6.

If the Attorney General accepts service of process for any named defendant(s),

26

such defendant(s) shall file and serve an answer or other response to the remaining claims

27

within sixty (60) days from the date of this order.

28

////
-5-

1

7.

That, henceforth, plaintiff shall serve upon defendants’ counsel a copy of every

2

pleading, motion or other document submitted for consideration by the Court and shall attach

3

a certificate of such service with the paper submitted. Plaintiff shall direct service to the

4

individual attorney named in the notice of appearance, at the address stated therein. The

5

Court may disregard any paper received by a judge that has not been filed with the Clerk and

6

any paper which fails to include a certificate showing proper service.

7

DATED:

February 18, 2014.

8
9
10
11

_________________________________
ROBERT C. JONES
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-