Birrell v. Knauf et al
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 06/06/11 ordering plaintiff's motion for appointment of a neutral person 27 is denied. Plaintiffs' motion for leave to file a further amended complaint 23 is denied. The clerk of the court shall strike the proposed second amended complaint filed on 03/03/11 from the docket. This action proceeds on the first amended complaint filed on 1/07/11 15 . (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAVID WESLEY BIRRELL,
aka BELLA-CHRISTINA BIRRELL,
No. CIV S-10-1707-GEB-CMK-P
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Plaintiff,
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vs.
ORDER
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KEITH HARLAN KNAUF, et al.,
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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42
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U.S.C. § 1983. Pending before the court are: (1) plaintiff’s motion for the appointment of a
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“neutral person” (Doc. 27); and (2) plaintiff’s motion for leave to file an amended complaint
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(Doc. 23).
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Turning first to plaintiff’s motion for appointment of counsel, plaintiff seeks
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appointment of a “neutral person to administer oaths and take testimony of witnesses. . . .”
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Specifically, plaintiff seeks an order designating fellow inmate Lawrence Alan Proffitt as such a
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person in this case. As the court stated in addressing plaintiff’s prior request for appointment of
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an inmate legal assistant, plaintiff has a right to access to inmate assistance subject to the prison’s
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ability to impose reasonable restrictions, but only where no reasonable alternative exists.
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See Storseth v. Spellman, 654 F.2d 1349 (9th Cir. 1981). Regarding the current motion, plaintiff
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has not demonstrated the absence of reasonable alternatives to appointment of Mr. Proffitt as a
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“neutral person.” Plaintiff seeks Mr. Proffitt’s assistance “in order to allow the Plaintiff to
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depose or perpetuate the testimony of numerous witnesses having critical evidence which bears
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directly upon the matters alleged in Plaintiff’s complaint.” Reasonable alternatives exist, for
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example, under Federal Rules of Civil Procedure 30 and 31 which permit the court to allow an
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inmate to take written or oral depositions. When such depositions are authorized, the rules
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provide a method for certifying the testimony.
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Turning to plaintiff’s motion for leave to amend, plaintiff seeks to file an amended
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complaint in order to join another inmate – Roman Galafate – as a defendant. As defendants
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note in their opposition, joinder is governed by Federal Rules of Civil Procedure 19 and 20.
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Under Rule 19, certain persons are required to be joined if complete relief as to the existing
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parties would be impossible in the person’s absence, or the person claims an interest in the
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action. See Fed. R. Civ. P. 19(a)(1). Neither circumstance for mandatory joinder exists in this
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case. The court can certainly afford complete relief to either defendants or plaintiff absent Mr.
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Galafate. Likewise, Mr. Galafate does not claim any interest in the action. Under Rule 20,
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certain persons may be joined as defendants if relief is asserted against the person and the same
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questions of law and fact are common to all defendants, including the joining person. See Fed.
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R. Civ. P. 20(a)(2). Here, one of the necessary conditions for permissive joinder is missing.
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Specifically, the questions of law and fact are distinct as between the existing correctional
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defendants and the purported inmate defendant. The claims against the correctional defendants
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are based on 42 U.S.C. § 1983 whereas any claims against Mr. Galafate would necessarily
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proceed under some state law tort theory because he is not a state actor. For these reasons,
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joinder will not be permitted. This action shall proceed on the first amended complaint filed on
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January 7, 2011 (Doc. 15).
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Accordingly, IT IS HEREBY ORDERED that:
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Plaintiff’s motion for appointment of a “neutral person” (Doc. 27) is
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Plaintiff’s motion for leave to file a further amended complaint (Doc. 23)
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The Clerk of the Court shall strike the proposed second amended
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denied;
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is denied;
complaint filed on March 3, 2011 (Doc. 24), from the docket; and
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This action proceeds on the first amended complaint filed on January 7,
2011 (Doc. 15).
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DATED: June 6, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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