(PC) Jackson v. Runnels, No. 2:2005cv01531 - Document 179 (E.D. Cal. 2009)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 01/27/09 ORDERING that Pltf's 166 request for the court's assistance in arranging oral depositions of dfts and for a copy of his deposition transcript is DENIED. Pltf's 167 mottion to amend is GRANTED. The Clerk is directed to file the proposed amended complaint as a second amended complaint. Service is appropriate for dft Cismowski. The Clerk shall send Pltf one USM-285 form, one summons, and instruction sheet and one copy of the second amended complaint. IT IS HEREBY RECOMMENDED that Pltf's 169 motion to file an amended complaint be denied. Objections due within 15 days. (Engbretson, K.)
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(PC) Jackson v. Runnels Doc. 179 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARCHEA JACKSON, Plaintiff, 11 vs. 12 13 No. CIV S-05-1531 LKK EFB P ORDER AND FINDINGS AND RECOMMENDATIONS D.L. RUNNELS, et al., Defendants. 14 / 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. Currently pending before the court is plaintiff’s request for the court’s assistance 18 in arranging oral depositions of defendants and for a copy of his deposition transcript, as well as 19 two motions to amend his complaint. 20 I. Plaintiff’s Request for Assistance with Depositions On December 28, 2007, plaintiff filed a motion requesting the court’s assistance in 21 22 arranging oral depositions of defendants. He states that he cannot afford to pay stenographer 23 fees, and therefore requests that defendants be ordered to arrange for plaintiff to use a video 24 recorder to take their depositions. 25 //// 26 //// 1 Dockets.Justia.com 1 Rule 30 of the Federal Rules of Civil Procedure requires that a “party who wants to 2 depose a person by oral questions must give reasonable written notice to every other party.” 3 Fed. R. Civ. P. 30(b)(1). “The party who notices the deposition must state in the notice the 4 method for recording the testimony.” Fed. R. Civ. P. 30(b)(3)(A). That party must also arrange 5 for an officer to conduct the depositions. Fed. R. Civ. P. 30(b)(5)(A). Plaintiff does not indicate 6 that he ever noticed defendants’ depositions and the court cannot order defendants to arrange for 7 plaintiff to take their depositions. Accordingly, plaintiff’s request is denied. 8 Plaintiff also states that, without court intervention, he will not be able to use any 9 portions of his deposition, which the defendants took on August 18, 2006. The court construes 10 this portion of plaintiff’s motion as a request for a copy of his deposition transcript. The officer 11 before whom a deposition is taken must retain stenographic notes of the proceedings or a copy of 12 the recording of a deposition taken by a different method. Fed. R. Civ. P. 30(f)(3). The officer 13 must provide a copy thereof to any party or to the deponent upon payment of reasonable charges 14 therefor. Id. The court cannot order the Clerk or defendants to provide plaintiff with a copy of 15 the transcript of the August 18, 2006 proceedings. Plaintiff must obtain it from the deposition 16 reporter before whom the deposition was taken pursuant to Rule 30(f)(3). 17 II. Plaintiff’s Motions to Amend 18 Plaintiff filed two motions for leave to file an amended complaint. Defendants did not 19 file an opposition brief to either motion. For the reasons explained below, the February 7, 2008 20 motion is granted and the February 28, 2008 motion must be denied. 21 A party may file an amended pleading as a matter of right anytime before a responsive 22 pleading has been served. Fed. R. Civ. P. 15(a)(1)(A). When a responsive pleading has been 23 served, “a party may amend its pleading only with the opposing party’s written consent or the 24 court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15 25 (a)(2). The defendants filed their responsive pleading, i.e., an answer, on February 9, 2007. 26 //// 2 1 Thus, in order to file an amended complaint, plaintiff must obtain leave of the court or the 2 consent of the defendants. In deciding whether to grant leave to amend, the court considers 3 following factors: the presence or absence of undue delay, bad faith, dilatory motive, repeated 4 failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and 5 futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); DCD 6 Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987). 7 In plaintiff’s February 7, 2008 motion to amend, he seeks to add as a defendant a 8 correctional officer named Cismowski. Defendants have filed no opposition to this motion and, 9 accordingly, plaintiff’s February 7, 2008 motion to amend is granted. 10 In plaintiff’s February 28, 2008 motion to amend, he seeks to add another defendant 11 identified as “T. Felker.” However, his allegations as to this defendant fail to state a claim. To 12 state a claim under 42 U.S.C. § 1983, plaintiff must allege that the defendant deprived plaintiff 13 of a right secured to him by the Constitution or laws of the United States while acting under 14 color of state law. West v. Atkins, 487 U.S. 42, 48-49 (1988). Plaintiff seeks to amend the facts 15 alleged in his complaint to include allegations that “T. Felker” reviewed and responded to 16 plaintiff’s appeal regarding being placed in an upper bunk and also responded to plaintiff’s letter 17 regarding being transferred by bus in handcuffs. The court finds that these allegations are 18 insufficient to state a cognizable claim for relief, and thus, the proposed amendments would be 19 futile. 20 Furthermore, the basis of plaintiff’s proposed amendments have been know to plaintiff as 21 early as August 1, 2005, when plaintiff filed his original complaint. Plaintiff attached as an 22 exhibit to his original complaint the above-referenced response from “T. Felker” regarding 23 plaintiff’s placement in an upper bunk. See Compl. Ex. D, at 37-39. The above-referenced 24 responses from “T. Felker” regarding plaintiff’s placement in an upper bunk and transfer by bus 25 in handcuffs are also included as exhibits to plaintiff’s September 22, 2006 amended complaint. 26 First Am. Compl., Ex. D at unnumbered pages 3-5, Ex. E at unnumbered pages 4-6, (Second) Ex. 3 1 D at unnumbered pages 2-5. While plaintiff states in his motion that he only discovered Felker’s 2 identity through discovery, plaintiff’s previous filings demonstrate that he has unduly delayed in 3 seeking the proposed amendments. 4 III. Conclusion 5 Accordingly, it is hereby ORDERED that: 6 1. Plaintiff’s December 28, 2007, request for the court’s assistance in arranging oral 7 depositions of defendants and for a copy of his deposition transcript is DENIED; 8 2. Plaintiff’s February 7, 2008, motion to amend his complaint is GRANTED; 9 3. The Clerk is directed to file the proposed amended complaint attached to plaintiff’s 10 February 7, 2008, motion as a second amended complaint; 11 4. Service is appropriate for defendant Cismowski; 12 5. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an 13 instruction sheet and one copy of the second amended complaint; 14 6. Within 30 days from service of this order, plaintiff shall complete the attached Notice 15 of Submission of Documents and submit it to the court with the completed summons and USM- 16 285 form and two copies of the endorsed second amended complaint; and 17 7. Upon receipt of the necessary materials, the court will direct the United States 18 Marshal to serve defendant Cismowski pursuant to Federal Rule of Civil Procedure 4 without 19 payment of costs. Failure to comply with this order will result in a recommendation that this 20 action be dismissed. 21 22 Further, it is hereby RECOMMENDED that plaintiff’s February 28, 2008, motion to file an amended complaint be DENIED. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 15 days after 25 being served with these findings and recommendations, any party may file written objections 26 with the court and serve a copy on all parties. Such a document should be captioned “Objections 4 1 to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 2 specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 3 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: January 27, 2009. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARCHEA JACKSON, Plaintiff, 11 vs. 12 13 No. CIV S-05-1531 LKK EFB P D.L. RUNNELS, et al., NOTICE OF SUBMISSION OF DOCUMENTS Defendants. 14 / 15 16 Plaintiff hereby submits the following documents in compliance with the court's order 17 : filed 18 1 completed summons form 19 completed forms USM-285 20 copies of the Second Amended Complaint 21 22 Dated: 23 Plaintiff 24 25 26 6
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