Price v. Jones, Sheriff et al

Filing 21

ORDER and REPORT AND RECOMMENDATION: It is ORDERED THAT Plaintiff's 5 MOTION for witnesses is DENIED and that Plaintiff's 16 MOTION to Amend 3 Complaint is GRANTED. It is RECOMMENDED THAT Plaintiff's 18 MOTION for default judgment be DENIED. (Objections to R&R due by 2/15/2013) Signed by Magistrate Judge Karen L. Litkovitz on 1/25/13. (mtw) (Additional attachment(s) added on 1/29/2013: # 1 Certified Mail Receipt) (mtw).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LANDON M. PRICE,
Plaintiff,
vs.
RICHARD K. JONES, SHERIFF, et al.,
Defendants.

Case No. 1:12-cv-360
Dlott, J.
Litkovitz, M.J.

ORDERANDREPORTAND
RECOMMENDATION

Plaintiff, a former inmate at the Butler County Jail, brings this prisoner civil rights action
under 42 U.S.C. § 1983. This matter is before the Court on prose plaintiffs motion to produce
witnesses (Doc. 5), motion to amend the complaint (Doc. 16), and motion for default judgment.
(Doc. 18). Defendants have not filed a response to any of these motions.
I.

Plaintiff's Motion to Produce Witnesses (Doc. 5)
On May 21, 2012, plaintiff filed a complaint alleging that while he was a prisoner

at Butler County Jail, defendants violated his constitutional rights and state and federal law by
failing to provide him with nutritionally adequate meals and were deliberately indifferent to his
serious medical needs. (Doc. 3). Defendants filed their answer to the complaint on June 21,
2012. (Doc. 12). The Court set a discovery deadline ofDecember 21, 2012 and a dispositive
motion deadline of January 21,2013. (Doc. 13). The discovery deadline has now passed and
defendants have filed a motion for summary judgment (Doc. 19) which, at the time of this
writing, is not yet ripe.
On May 21, 2012, plaintiff filed a "motion to produce witnesses in support of the
plaintiffs civil complaint." (Doc. 5 at 1). In his motion, plaintiff asserts that he has filed valid
claims against defendants due to their alleged failure to provide him adequately nutritious meals.

!d. at 2. Plaintiff asserts that the lack of a proper diet "is witnessed by all of the inmates listed

below[,]" after which plaintiff lists the names and prisoner identification numbers of 22
individuals, including himself. ld. at 3-5. However, plaintiffs motion does not identify the
particular reliefhe is seeing from the Court. Rather, it appears that plaintiff is simply identifying
witnesses upon whom he intends to rely in prosecuting his lawsuit in conformity with Federal
Rule of Civil Procedure 26(a)(1). See Fed. R. Civ. P. 26(a)(1) (parties have a duty to disclose
witnesses prior to the receipt of any discovery request). The undersigned finds that plaintiffs
motion should be construed as a Rule 26(a)(1) disclosure and not a motion for discovery.
Accordingly, plaintiffs motion for witnesses (Doc. 5) is DENIED.

II.

Plaintiff's Motion to Amend the Complaint (Doc. 16)
On July 6, 2012, plaintiff filed a motion to amend his complaint to include allegations

that he was assaulted by defendant C/0 Riggins as a result of filing the instant lawsuit. (Doc. 16
at 1). Plaintiffs motion includes the following allegations:
On or about June 24th, 2012, Corrections Officer Riggins was sent to A pod in the
Butler County Jail to escort [p]laintiff to F Pod. C/0 Riggins was acting very
intimidating and aggressive towards [p ]laintiff causing him a great deal of
discomfort and causing [p ]laintiff to fear for his safety. As [p ]laintiff was packing
his belongings [C/0 Riggins] stood over [p]laintiffmaking comments that where
(sic) disrespectful and demeaning stating, "You think your (sic) tough you AB
KKK Bitch, I'll fuck you up." As [p]laintiff finished packing his belongings he
walked out of his cell onto the top range from cell 36 ... and walked toward the
front of A pod. At this time, C/0 Riggins did run up on [p ]laintiff from behind,
hitting plaintiff with a fist, in the back of the head, knocking [p ]laintiff to the
ground. C/0 Riggins proceeded to punch and kick [p]laintiff after [p]laintiff fell
to the floor and curled up in a ball on the floor. C/0 Riggins then proceeded to
lay on top of [p ]laintiff punching him repeatedly over and over yelling ' [s]ew
(sic) me you white bitch, who the fuck do you think you are.' C/0 Riggins
proceeded to punch [p ]laintiff calling him a KKK bitch several times and yelled
'this is how the niggaz (sic) do it you pink bitch.' After about 3 to 5 min[utes] of
this brutal beating the other C/Os got to A pod and told C/0 Riggins to stop
assaulting [p ]laintiff. The [p]laintiff at this time, followed the [i]nstructions given
him by the corrections officers and placed his hands behind his back to be
handcuffed. All of the inmates in A pod top range where on recreation and
witnessed this assult (sic) on [p ]laintiff.

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Id. at 2-3. Plaintiff further alleges that C/0 Riggins threatened to physically beat him in the
future and that other corrections officers strapped him into a restraint chair that caused plaintiff
physical injury. Id. at 4. After he was removed from the chair, plaintiff alleges he was given a
Velcro gown to wear and placed in an observation cell. Id. at 5. Plaintiff further alleges that the
following day, his attorney visited him and upon seeing his physical injuries requested that
plaintiffbe relocated to the Boone County Jail, where he is presently being held. Id.
In the absence of any opposition by defendants, and because leave to amend "shall be
freely granted whenjustice so requires," Fed. R. Civ. P. 15(a); Moore v. City ofPaducah, 790
F.2d 557, 559-60 (6th Cir. 1986), the Court finds that plaintiffs motion to amend the complaint
to add C/0 Riggins as a defendant is well-taken and therefore is GRANTED.
Plaintiff is ORDERED to submit a copy ofhis original and amended complaints, a
summons form, and a United States Marshal form for defendant Riggins so service of process
may be made on this defendant within twenty (20) days of the date of this Order. Upon receipt
of these documents, the Court shall order service of process by the United States Marshal.
The Clerk of Court is DIRECTED to send plaintiffs summons and United States
Marshal forms for this purpose.

III.

Plaintiff's Motion for Default Judgment (Doc. 18)
Plaintiff moves for default judgment against defendants asserting that they have failed to

timely file a response to his amended complaint. However, the mere fact that plaintiff filed a
motion to amend his complaint does not trigger defendants' duty to file a responsive pleading.
That duty is only triggered once the motion to amend is granted and the complaint is filed and
served on defendants. See Fed. R. Civ. P. 12. As plaintiffs motion was filed prior to the instant
order allowing the filing of his amended complaint, it is premature. Accordingly, the
undersigned recommends that plaintiffs motion for default judgment be DENIED.

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IV. Conclusion
For the reasons stated herein, IT IS ORDERED THAT plaintiffs motion to amend
(Doc. 16) is GRANTED and plaintiffs motion for witnesses (Doc. 5) is DENIED. Further, IT
IS RECOMMENDED THAT plaintiffs motion for default judgment (Doc. 18) be DENIED.

~0~
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LANDON M. PRICE,
Plaintiff,

Case No. 1:12-cv-360
Dlott, J.
Litkovitz, M.J.

vs.
RICHARD K. JONES, SHERIFF, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b ), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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