Mullen v. Foulk et al, No. 5:2009cv06081 - Document 49 (N.D. Cal. 2011)
Court Description: ORDER Granting Motion for Leave to File a First Amended Complaint 18 ; Addressing Pending Motions by Judge Ronald M. Whyte. (jg, COURT STAFF) (Filed on 1/27/2011)
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Mullen v. Foulk et al Doc. 49 1 2 3 4 *E-FILED - 1/27/11* 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 BARTOLO MULLEN, 11 Plaintiff, 12 v. 13 14 ED FOULK, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) ) No. C 09-6081 RMW (PR) ORDER GRANTING MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT; ADDRESSING PENDING MOTIONS 16 Plaintiff, a civilly committed person proceeding pro se, filed a civil rights complaint 17 pursuant to 42 U.S.C. § 1983. On May 11, 2010, the court served plaintiff’s stated cognizable 18 claims of retaliation, due process, procedural due process, and that California Welfare and 19 Institution Code § 7301 is unconstitutional. On September 8, 2010, defendants filed a motion for 20 summary judgment. On October 4, 2010, plaintiff filed a motion for leave to file a first amended 21 complaint. 22 A plaintiff may amend the complaint once as a matter of course within 21 days after 23 serving it. Fed. R. Civ. P. 15(a)(1)(A). But if the complaint requires a responsive pleading, a 24 plaintiff may amend the complaint 21 days after service of a responsive pleading or 21 days after 25 service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 26 15(a)(1)(B). Here, 21 days from the date of service had already passed. However, because 27 plaintiff’s amended complaint raises the same issues alleged in his original complaint, and 28 Order Granting Motion for Leave to File a First Amended Complaint; Addressing Pending Motions P:\PRO-SE\SJ.Rmw\CR.09\Mullen081amend.wpd Dockets.Justia.com 1 defendants have not filed an opposition, the court GRANTS plaintiff’s motion for leave to file an 2 amended complaint. 3 In plaintiff’s amended complaint, he adds several more defendants, all of whom will be 4 served except for defendants Stephen Mayberg, the Director of the Department of Mental Health, 5 and James Gomez, the Secretary of the California Department of Corrections and Rehabilitation. 6 As the court noted in its March 24, 2010 order, Plaintiff had not connected either of these 7 defendants with any allegation of a violation of his federal constitutional rights. Plaintiff’s 8 amended complaint does not cure this deficiency. Accordingly, defendants Mayberg and Gomez 9 are DISMISSED. 10 On October 20, 2010, plaintiff filed a request to add more defendants to his complaint. 11 Plaintiff alleges these defendants participated in the violation of his right to be free from 12 retaliation. Plaintiff’s request is GRANTED. The clerk of the court shall serve these newly 13 added defendants and the court will set a further briefing schedule. 14 On November 2, 2010, plaintiff filed another request to add more defendants to the 15 complaint. Plaintiff also requested adding additional claims. Specifically, plaintiff requests 16 permission to add a claim that John Rodriguez, Deputy Director of Long Term Care Services at 17 the Department of Mental Health; Dolly Matteucci, Interim Director of Napa State Hospital; 18 Brigid Hanson, Division of Correctional Health Care Services; Lea Ann Chrones, Division of 19 Adult Institutions; and defendant Cynthia Radavsky, Long Term Care Services acquiesced in a 20 policy that was not approved by the Office of Administrative Law, and violated California 21 Welfare and Institutions Code § 7301. However, a violation of a state law does not necessary 22 violate federal law. Plaintiff does not state, and the court is unaware of, any federal 23 constitutional right that is alleged to be violated. Accordingly, these newly named defendants 24 and new claim will not be added to plaintiff’s amended complaint. Plaintiff’s request is 25 DENIED. 26 On December 6, 2010, plaintiff filed a notice with the court that on November 17, 2010, 27 he was moved from prison to a conditional release program. That program is a 90-day treatment 28 program, in which plaintiff will not have access to a law library in which to conduct research to Order Granting Motion for Leave to File a First Amended Complaint; Addressing Pending Motions 2 P:\PRO-SE\SJ.Rmw\CR.09\Mullen081amend.wpd 1 litigate this case. To that end, plaintiff requests the court order the conditional release program 2 to permit him to visit a law library, or, in the alternative, stay this action until February 17, 2011 3 -- two weeks after plaintiff is scheduled to be discharged. In light of the fact that the newly 4 added defendants have yet to be served, and will be directed to file a dispositive motion within 5 ninety days of the date of this order, an order staying this action appears unnecessary at this time. 6 Accordingly, plaintiff’s motion is DENIED. 7 Accordingly, the court orders as follows: 8 1. 9 10 Plaintiff’s motion for appointment of counsel is DENIED for want of exceptional circumstances. 2. The clerk of the court shall issue summons and the United States Marshal shall 11 serve, without prepayment of fees, a copy of the amended complaint (docket no. 18), all 12 attachments thereto, and a copy of this order upon: Stacy Cone, Patricia A. Tyler, Linda 13 Howard (program director), Aparna Dixit Brunet (staff psychologist), Debbie McKinney 14 (staff psychiatrist) at Napa State Hospital; S. Hubbard, R. Gray, S. McCarver, G. Marshall, 15 and S. Albritton at the Department of Mental Health, Departmental Review Board in 16 Sacramento; and Police Sergeant Daniel G. Mayo at Napa State Hospital. 17 3. No later than ninety (90) days from the date of this order, all defendants shall file 18 a motion for summary judgment or other dispositive motion with respect to the claims in the 19 complaint as set forth above, or notify the court that they are of the opinion that this case cannot 20 be resolved by such a motion. 21 a. If defendants elect to file a motion to dismiss on the grounds that plaintiff 22 failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a), 23 defendant shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315 24 F.3d 1108, 1119-20 (9th Cir. 2003). 25 b. Any motion for summary judgment shall be supported by adequate factual 26 documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil 27 Procedure. Defendants are advised that summary judgment cannot be granted, nor 28 qualified immunity found, if material facts are in dispute. If any defendant is of the Order Granting Motion for Leave to File a First Amended Complaint; Addressing Pending Motions 3 P:\PRO-SE\SJ.Rmw\CR.09\Mullen081amend.wpd 1 opinion that this case cannot be resolved by summary judgment, he shall so inform the 2 court prior to the date the summary judgment motion is due. 3 4 4. served on defendant no later than thirty (30) days from the date defendants’ motion is filed. 5 6 7 8 9 10 11 12 a. 15 16 17 18 19 20 21 22 23 24 25 In the event defendants file an unenumerated motion to dismiss under Rule 12(b), plaintiff is hereby cautioned as follows:1 The defendants have made a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, on the ground you have not exhausted your administrative remedies. The motion will, if granted, result in the dismissal of your case. When a party you are suing makes a motion to dismiss for failure to exhaust, and that motion is properly supported by declarations (or other sworn testimony) and/or documents, you may not simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or documents, that contradict the facts shown in the defendant’s declarations and documents and show that you have in fact exhausted your claims. If you do not submit your own evidence in opposition, the motion to dismiss, if appropriate, may be granted and the case dismissed. 13 14 Plaintiff’s opposition to the dispositive motion shall be filed with the court and b. In the event defendants file a motion for summary judgment, the Ninth Circuit has held that the following notice should be given to plaintiffs: The defendants have made a motion for summary judgment by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case. Rule 56 tells you what you must do in order to oppose a motion for summary judgment. Generally, summary judgment must be granted when there is no genuine issue of material fact--that is, if there is no real dispute about any fact that would affect the result of your case, the party who asked for summary judgment is entitled to judgment as a matter of law, which will end your case. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in declarations, depositions, answers to interrogatories, or authenticated documents, as provided in Rule 56(e), that contradict the facts shown in the defendants’ declarations and documents and show that there is a genuine issue of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted in favor of defendants, your case will be dismissed and there will be no trial. See Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). Plaintiff is advised to read 26 27 28 1 The following notice is adapted from the summary judgment notice to be given to pro se prisoners as set forth in Rand v. Rowland, 154 F.3d 952, 963 (9th Cir. 1998) (en banc). See Wyatt v. Terhune, 315 F.3d at 1120 n.14. Order Granting Motion for Leave to File a First Amended Complaint; Addressing Pending Motions 4 P:\PRO-SE\SJ.Rmw\CR.09\Mullen081amend.wpd 1 Rule 56 of the Federal Rules of Civil Procedure and Celotex Corp. v. Catrett, 477 U.S. 317 2 (1986) (holding party opposing summary judgment must come forward with evidence showing 3 triable issues of material fact on every essential element of his claim). Plaintiff is cautioned that 4 failure to file an opposition to defendants’ motion for summary judgment may be deemed to be a 5 consent by plaintiff to the granting of the motion, and granting of judgment against plaintiff 6 without a trial. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (per curiam); Brydges 7 v. Lewis, 18 F.3d 651, 653 (9th Cir. 1994). 8 9 10 11 12 5. Defendants shall file a reply brief no later than fifteen (15) days after plaintiff’s opposition is filed. 6. The motion shall be deemed submitted as of the date the reply brief is due. No hearing will be held on the motion unless the court so orders at a later date. 7. All communications by the plaintiff with the court must be served on defendants, 13 or defendants’ counsel once counsel has been designated, by mailing a true copy of the 14 document to defendants or defendants’ counsel. 15 16 8. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order is required before the parties may conduct discovery. 17 For plaintiff’s information, the proper manner of promulgating discovery is to send 18 demands for documents or interrogatories (questions asking for specific, factual responses) 19 directly to defendants’ counsel. See Fed. R. Civ. P. 33-34. The scope of discovery is limited to 20 matters “relevant to the claim or defense of any party . . .” See Fed. R. Civ. P. 26(b)(1). 21 Discovery may be further limited by court order if “(i) the discovery sought is unreasonably 22 cumulative or duplicative, or is obtainable from some other source that is more convenient, less 23 burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by 24 discovery in the action to obtain the information sought; or (iii) the burden or expense of the 25 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2). In order to comply 26 with the requirements of Rule 26, before deciding to promulgate discovery plaintiff may find it 27 to his benefit to wait until defendants have filed a dispositive motion which could include some 28 or all of the discovery plaintiff might seek. In addition, no motion to compel will be considered Order Granting Motion for Leave to File a First Amended Complaint; Addressing Pending Motions 5 P:\PRO-SE\SJ.Rmw\CR.09\Mullen081amend.wpd 1 by the Court unless the meet-and-confer requirement of Rule 37(a)(2)(B) and N.D. Cal. Local 2 Rule 37-1 has been satisfied. Because plaintiff is detained, he is not required to meet and confer 3 with defendants in person. Rather, if his discovery requests are denied and he intends to seek a 4 motion to compel he must send a letter to defendants to that effect, offering them one last 5 opportunity to provide him with the sought-after information. 6 9. It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court 7 and all parties informed of any change of address and must comply with the court’s orders in a 8 timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute 9 pursuant to Federal Rule of Civil Procedure 41(b). 10 11 12 IT IS SO ORDERED. 1/25/11 DATED: _________________ RONALD M. WHYTE United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motion for Leave to File a First Amended Complaint; Addressing Pending Motions 6 P:\PRO-SE\SJ.Rmw\CR.09\Mullen081amend.wpd
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