Cruze v. Warner et al

Filing 51

ORDER ON PENDING MOTIONS 44 , 45 and 47 signed by Judge J Richard Creatura. (MET) cc: plaintiff

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

7
8

SCHAWN JAMES CRUZE,
9
Plaintiff,
10

CASE NO. C13-5220 BHS-JRC
ORDER ON PENDING MOTIONS

v.
11
BERNIE WARNER et al.,
12
Defendant.
13
14

The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States

15

Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §

16

636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.

17

On July 11, 2013, the Court entered an order that denied plaintiff’s motion for

18

appointment of counsel without prejudice and ordered plaintiff to inform the Court what steps he

19

had taken to obtain information that he alleges the Department of Corrections is withholding

20

from him (ECF No. 40). The Court’s order gave plaintiff until August 16, 2013 to provide the

21

Court with information (id.). Plaintiff has not filed a response and has instead filed a motion to

22

amend the complaint and a motion to compel the Department of Corrections to “turn over all

23

evidence related to my civil rights claims.” (ECF No. 47).

24

ORDER ON PENDING MOTIONS - 1

1

Defendants have filed a motion to extend the time for filing a response because of

2 counsel being unavailable (ECF No. 45). Defendants’ counsel had previously filed a notice of
3 unavailability (ECF No. 43). Defendants then filed responses to both of plaintiff’s motions (ECF
4 No. 48 and 49). The Court grants defendants’ motion for an extension of time and will consider
5 the responses to plaintiff’s motions because the Court and plaintiff were on notice that defense
6 counsel was not available.
7

1.

8

When the Court enters an order directing a party to perform an act, failure of the party to

Lack of response to an order to show cause.

9 obey the Court’s order may result in sanctions. These sanctions may include a wide range of
10 sanctions, such as limitations on discovery, monetary sanction, or even dismissal of actions.
11 Plaintiff has failed to provide information to the Court when he was ordered to. The Court will
12 not impose sanctions in this instance.
13

2.

14

The Court denies plaintiff’s motion to amend the complaint without prejudice. Local

Motion to amend the complaint.

15 Rule 15 states:
16

21

A party who moves for leave to amend a pleading, or who seeks to amend a
pleading by stipulation and order, must attach a copy of the proposed amended
pleading as an exhibit to the motion or stipulation. The party must indicate on the
proposed amended pleading how it differs from the pleading that it amends by
bracketing or striking through the text to be deleted and underlining or
highlighting the text to be added. The proposed amended pleading must not
incorporate by reference any part of the preceding pleading, including exhibits. If
a motion or stipulation for leave to amend is granted, the party whose pleading
was amended must file and serve the amended pleading on all parties within
fourteen (14) days of the filing of the order granting leave to amend, unless the
court orders otherwise.

22

Plaintiff alleges he is having difficulty getting any time in the prison library (ECF No. 44

17
18
19
20

23 page 1). While the lack of library time may excuse plaintiff’s failure to follow the local rule, the
24 Court still requires a proposed amended complaint because the Court will not allow improper

ORDER ON PENDING MOTIONS - 2

1 amendments. Plaintiff will have to supply a proposed amended complaint if he wishes the Court
2 to consider a motion to amend.
3

In response to plaintiff’s motion, defendants ask the Court to summarily dismiss three

4 defendants who plaintiff states he wants to dismiss, but defendants ask that the remainder of the
5 motion be denied because no proposed complaint was filed (ECF No. 48). The Court declines to
6 file a Report and Recommendation to dismiss a party based on plaintiff’s wish to file an
7 amended complaint when the Court does not have the proposed complaint before it.
8

3.

9

Plaintiff’s motion again fails to conform to this Court’s rules. The Court will not consider

Motion to compel discovery.

10 the motion. A party bringing a motion to compel must certify that the parties have met and
11 conferred and the party must follow several other procedures before the Court will consider a
12 motion to compel. Because plaintiff alleges he is having trouble accessing the law library the
13 Court will set forth the Local Rule:
14

Local Rule 37 states:

15

(a) Motion for Order Compelling Disclosure or Discovery

16

(1) Meet and Confer Requirement. Any motion for an order compelling disclosure
or discovery must include a certification, in the motion or in a declaration or
affidavit, that the movant has in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery in an effort to resolve
the dispute without court action. The certification must list the date, manner, and
participants to the conference. If the movant fails to include such a certification,
the court may deny the motion without addressing the merits of the dispute. A
good faith effort to confer with a party or person not making a disclosure or
discovery requires a face-to-face meeting or a telephone conference. If the court
finds that counsel for any party, or a party proceeding pro se, willfully refused to
confer, failed to confer in good faith, or failed to respond on a timely basis to a
request to confer, the court may take action as stated in CR 11 of these rules.

17
18
19
20
21
22
23
24

(2) Expedited Joint Motion Procedure. A motion for an order compelling
disclosure or discovery may be filed and noted in the manner prescribed in LCR
7(d)(3). Alternatively, the parties may, by agreement, utilize the expedited
procedure set forth in this subsection. If the parties utilize this procedure, the

ORDER ON PENDING MOTIONS - 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

motion may be noted for consideration for the day the motion is filed. After the
parties have conferred, a party may submit any unresolved discovery dispute to
the court through the following procedure:
(A) The moving party shall be responsible for preparing and filing a joint
LCR 37 submission to the court. An example of an LCR 37 submission is
attached as Appendix B.
(B) The moving party may draft an introductory statement, setting forth
the context in which the dispute arose and the relief requested. Each
disputed discovery request and the opposing party’s objection/response
thereto shall be set forth in the submission. Immediately below that, the
moving party shall describe its position and the legal authority which
supports the requested relief.
The moving party shall provide the opposing party with a draft of the LCR
37 submission and shall also make the submission available in computerreadable format.
(C) Within seven days of receipt of the LCR 37 submission from the
moving party, the opposing party shall serve a rebuttal to the moving
party’s position for each of the disputed discovery requests identified in
the motion. The opposing party may also include its own introductory
statement. The opposing party's rebuttal for each disputed discovery
request shall be made in the same document and immediately following
the moving party’s statement in support of the relief requested. If the
opposing party no longer objects to the relief requested, it shall so state
and respond as requested within seven days from the date the party
received the draft LCR 37 submission. If the opposing party fails to
respond, the moving party may file the LCR 37 submission with the court
and state that no response was received.
(D) The moving party’s reply, if any, in support of a disputed discovery
request shall follow the opposing party's rebuttal for such request in the
joint submission and shall not exceed one half page for each reply.
(E) The total text that each side may contribute to a joint LCR 37
submission shall not exceed twelve pages. This limit shall include all
introductory or position statements, and statements in support of, or in
opposition to, a particular request, but shall not include the discovery
request itself.
(F) Each party may submit declarations for the purpose of attaching
documents to be considered in connection with the submission and to
provide sufficient information to permit the court to assess expenses and
sanctions, if appropriate. If a party fails to include information sufficient
to justify an award of fees, it shall be presumed that any request for fees

24

ORDER ON PENDING MOTIONS - 4

1

has been waived. A declaration shall not contain any argument.

2

(G) The moving party shall prepare a proposed order that identifies each
of the discovery requests at issue, with space following each of the
requests for the court's decision. This proposed order shall be attached as a
Word or Word Perfect compatible file to an e-mail sent to the e-mail
orders address of the assigned judge pursuant to the court’s Electronic
Filing Procedures.

3
4
5

(H) The moving party shall be responsible for filing the motion containing
both parties' positions on the discovery disputes, any declarations
submitted by the parties, and the proposed form of order. The moving
party shall certify in the motion that it has complied with these
requirements. The submission shall be noted for consideration on the date
of filing and shall be described as a "LCR 37 Joint Submission."

6
7
8

13

(I) If all parties agree to do so, they may use the expedited joint motion
procedure for other types of motions, including but not limited to motions
to seal, motions for relief from a deadline, and motions in limine. The
timing and procedure shall be the same as set forth above except that (1)
instead of setting forth the disputed discovery request and the opposing
party's objection/response thereto, the moving party should set forth the
relief requested and the legal authority that supports the requested relief,
and (2) the moving party must submit a proposed order that sets forth the
relief requested.

14

Because plaintiff is an inmate, the portion of the rule requiring him to submit his pleading

9
10
11
12

15 in computer readable format does not apply. The Court does expect plaintiff to meet and confer
16 telephonically or in person with defense counsel. Further, the Court expects plaintiff to set forth
17 the discovery request and the answer to the request for each item that plaintiff wants the Court to
18 consider.
19

The Clerk’s Office is directed to remove ECF Nos. 44, 45, and 47 from the calendar.

20

Dated this 10th day of September, 2013.

A

21
22

J. Richard Creatura
United States Magistrate Judge

23
24

ORDER ON PENDING MOTIONS - 5