-VCF Denson v. Gillispie et al, No. 2:2010cv00525 - Document 44 (D. Nev. 2011)
Court Description: ORDER Granting in part and denying in part 43 Plaintiff's Motion to Have this Matter Put on the Court's Calendar For a Status Check and Other Relief. Plaintiff has 30 days from the entry of this order to file a Motion for Leave to File Third Amended Complaint. IT IS FURTHER ORDERED that the request for hearing is DENIED. Signed by Magistrate Judge Cam Ferenbach on 11/18/11. (Copies have been distributed pursuant to the NEF - EDS)
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-VCF Denson v. Gillispie et al Doc. 44 1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 RICHARD A. DENSON, 5 Plaintiff, 6 v. 7 DOUG GILLISPIE, et al., 8 Defendants. 9 10 11 *** ) ) ) ) ) ) ) ) ) ) 2:10-cv-00525-RCJ -VCF ORDER Before the court is pro se plaintiff Richard A. Denson’s Motion To Have This Matter Put On The Court’s Calendar For A Status Check and Other Relief. (#43). 12 Plaintiff filed his first amended civil rights complaint on August 13, 2010 (#5), against Detective 13 J. Ducas and Napcare, Inc. Plaintiff alleges that he was intentionally struck by Detective Ducas’ 14 unmarked police car, and suffered several broken bones, bruises, and nerve damage. (#5). He contends 15 that he was subsequently given insufficient medical treatment when he arrived at Clark County 16 Detention Center. Id. After reviewing the amended complaint (#5), the court dismissed defendant 17 Detective Ducas in his official capacity only, and directed service of process upon the remaining 18 defendants. (#8). Service was never effectuated on defendant Detective Ducas. Defendant Napcare 19 filed a motion to dismiss the amended complaint on November 18, 2010. (#12). 20 The court entered a scheduling order on March 1, 2011. (#29). On March 21, 2011, Napcare 21 filed a motion to stay discovery pending the outcome of the motion to dismiss. (#32). The court 22 granted the motion, staying all discovery. (#34). Subsequently, on April 25, 2011, the court dismissed 23 plaintiff’s amended complaint against Napcare with leave to amend. (#35). The court held that plaintiff 24 may amend his complaint in order to add individual employees of Napcare as defendants or to re-plead 25 the claim against Napcare. Id. Plaintiff filed a second amended complaint on July 7, 2011, against 26 defendant Detective Ducas and John Does #1 and #2. (#37). Thereafter, he filed a motion for Dockets.Justia.com 1 appointment of counsel (#39), which the court denied without prejudice (#39). The court held that “the 2 court will revisit the issue of appointed counsel once defendants have had an opportunity to respond to 3 the lawsuit.” (#39). Plaintiff filed his present motion on November 2, 2011. (#43). 4 Motion For Hearing 5 In the present motion, plaintiff asks this court for several forms of relief and to hold a hearing 6 on the same. (#43). He seeks an order from the court (1) permitting him to file a third amended 7 complaint, (2) appointing counsel to assist him, (3) directing the clerk’s office to furnish him with a 8 docket sheet and other needed information, (4) directing the Marshal’s office to cooperate with him and 9 answer his inquiries, and (5) permitting him additional time to draft his third amended complaint and 10 relief from the requirement that he attach it to his motion to file an amended complaint. 11 A. File Third Amended Complaint/Receive Additional Time 12 In the court’s previous dismissal order (#35), it dismissed all plaintiff’s claims against Napcare 13 with leave to amend. In the second amended complaint (#37), plaintiff asserts claims against Ducas and 14 two unknown Napcare doctors for alleged violations of his fourth and fourteenth amendments. To date, 15 defendant Ducas has not been served. In the present motion, plaintiff asks this court to permit him to 16 file a third amended complaint. (#43). He asserts that this will allow him to “truly amend his complaint 17 and comply with the court direction,” and to “allege causes of action which can be raised not only as 18 to the entities involved but the individuals” as well. Id. Plaintiff does not explain to the court how he 19 intends on amending his complaint, who he will add as defendants, or what new claims he will assert. 20 Id. 21 Pursuant to Local Rule 15-1, “the moving party shall attach a proposed amended pleading to 22 any motion to amend, so that it will be complete in itself without reference to the superseding pleading.” 23 This rule enables the court to analyze whether an amendment would be futile, or whether it is justified. 24 Absent an attached proposed amended complaint, the court cannot adequately determine whether 25 26 2 1 permitting the filing of an amended complaint is warranted. As plaintiff is proceeding pro se1, the court 2 will permit plaintiff thirty days from the entry of this order to file a proper motion to file third amended 3 complaint. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 584 (1972)(holding that pro se plaintiffs 4 are held to a less stringent standard than those who are represented by counsel.). Such a motion must 5 be titled “Motion For Leave To File Third Amended Complaint,” must demonstrate the justification for 6 filing such an amended complaint, and must have the proposed amended complaint attached thereto. 7 Plaintiff’s failure to abide by this order will result in a denial of the motion. 8 B. Appointment Of Counsel 9 As the court held in its previous order (#39) denying counsel, “the court may appoint counsel 10 under 28 U.S.C. § 1915 only under exceptional circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 11 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the likelihood 12 of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the 13 complexity of the legal issues involved. Neither of these factors is dispositive and both must be viewed 14 together before reaching a decision.” Id. (citations and internal quotation marks omitted). The court 15 stated in its order (#39) that it was “difficult to determine whether there is a likelihood of success on 16 the merits of plaintiff’s claims at this early stage of the proceeding,” and that it “will revisit the issue 17 of appointed counsel once defendants have had an opportunity to respond to the lawsuit.” 18 At this stage, the defendants named in the second amended complaint have not been served and 19 have not have appeared in the case, and plaintiff is seeking to file a third amended complaint. 20 Therefore, as this action is still in an early stage, and defendants have not had an opportunity to respond, 21 the motion for appointment of counsel is premature. Plaintiff may renew his motion after the court has 22 ruled on his forthcoming motion for leave to file third amended complaint and after defendants have 23 24 25 26 1 As the plaintiff is proceeding pro se, he is required to familiarize himself with the Federal Rules of Civil Procedure as well as the Local Rules of this court. See Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986)(holding that pro se parties are not excused from following the rules and orders of the court). 3 1 been served and have had an opportunity to respond to the claims, if the filing of a third amended 2 complaint is permitted. 3 C. Request for Copy of Docket Sheet 4 Plaintiff asserts that he “anticipates future problems with...the [c]lerk’s [o]ffice,” and asks this 5 court to order the clerk’s office to provide him with a copy of the docket sheet and minutes of all 6 relevant proceedings. (#43). In his previous motion for free copies, the plaintiff indicated that he was 7 “in the dark [as] to the present status of his case,” and needed to review the docket so he can “check his 8 status and know how to proceed.” (#40). Plaintiff does not have access to a computer, and cannot view 9 the docket in this action. 10 The statute providing authority to proceed in forma pauperis, 28 U.S.C. § 1915, does not include 11 the right to obtain court documents without payment. Although the Ninth Circuit has not spoken on the 12 issue, courts in other jurisdictions have not allowed plaintiffs proceeding in forma pauperis to receive 13 free copies of documents from the court without the plaintiff demonstrating a specific showing of need. 14 See, e.g., Collins v. Goord, 438 F.Supp. 2d 399 (S.D.N.Y. 2006); Guinn v. Hoecker, 43 F.3d 1483 (10th 15 Cir. 1994) (no right to free copy of any document in record unless plaintiff demonstrates specific need); 16 In re Richard, 914 F.2d 1526 (6th Cir. 1990) (28 U.S.C. § 1915 does not give litigant right to have 17 documents copied at government expense); Douglas v. Green, 327 F.2d 661, 662 (6th Cir. 1964) (no 18 free copy of court orders). 19 Here, plaintiff “anticipates” a future problem, but does not demonstrate a specific showing of 20 a present need to review the docket. Id. In this order, the court has advised plaintiff specifically how 21 to proceed in this action, by detailing what motion to file and the proper way to file it. Thus, a copy of 22 the docket is not required in order for plaintiff to proceed. If, in the future, the plaintiff can demonstrate 23 a present specific need for the copies, the court will entertain a subsequent motion for copies. 24 D. 25 Plaintiff also contends that he “anticipates future problems with...the Marshal’s service as this 26 Marshal’s Office 4 1 matter proceeds.” (#43). Plaintiff asks this court to order the Marshals to “answer his correspondence 2 and let him know if and when the [d]efendants are served with process.” Id. The Marshals are not 3 required to serve the defendants until the court screens the complaint and orders the Marshals to do so. 4 Here, plaintiff is attempting to file a third amended complaint. Since the plaintiff has not been granted 5 leave of the court to do so, the court has not screened the third amended complaint and has not ordered 6 the Marshals to serve the defendants. Therefore, the Marshals do not have a duty to serve the third 7 amended complaint or communicate with the defendant, and the present request regarding the Marshals 8 is premature. 9 If the court permits the filing of the third amended complaint, screens the same, and plaintiff’s 10 claims survive, the court will order the clerk to file the complaint, issue summons to the defendants 11 named in the complaint, deliver the same to the U.S. Marshal for service, and send blank copies of the 12 USM-285 forms to the plaintiff. The plaintiff will then have twenty (20) days to furnish to the U.S. 13 Marshal the required USM-285 forms. At that point, the Marshals will be required to effectuate service 14 on the defendants. The Marshals will then provide plaintiff with the completed USM-285 forms, which 15 indicate whether defendants have been served. If the plaintiff desires any further action from the 16 Marshals, the plaintiff shall file a motion with the court for such relief. The plaintiff shall not contact 17 the Marshals directly. 18 Accordingly, and for good cause shown, 19 IT IS ORDERED that pro se plaintiff Richard A. Denson’s Motion To Have This Matter Put 20 On The Court’s Calendar For A Status Check and Other Relief (#43) is GRANTED in part, and 21 DENIED in part without prejudice, as discussed above. 22 IT IS THEREFORE ORDERED that plaintiff has thirty days from the entry of this order to file 23 a Motion For Leave To File A Third Amended Complaint, in accordance with the Local Rules as set 24 forth in this order. Failure to comply with the Local Rules shall result in the denial of the motion. 25 ... 26 5 1 2 3 IT IS FURTHER ORDERED that in light of the court’s ruling on the present motion, the request for a hearing is DENIED. DATED this 18th day of November, 2011. 4 5 6 CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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