Opinion
Civil No. 02-978 (JRT/JSM)
March 30, 2004
Michael Williams, Minnesota Correctional Facility, Stillwater, MN, pro se
Kari Jo Ferguson, St. Paul, MN, for defendants
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Williams ("plaintiff) is an inmate currently incarcerated at the Minnesota Correctional Facility at Oak Park Heights ("MCH-OPH"). Plaintiff has brought this action against defendants Mark Ehlenz, Mark Kroll, David Korte, Michael Seath, Pete Bjurstrom, Mike Green, Sgt. Shroeder, Sgt. Evans, Joseph Wiggins, Bradley Gross, Linda Leedahl, and A. J. Warden (collectively "defendants"), all employees of the Minnesota Department of Corrections, under 42 U.S.C. § 1983 alleging violations of his civil rights. Currently before the Court are Plaintiff's appeals of United States Magistrate Judge Janie S. Mayeron's orders dated October 24, 2003, November 14, 2003, and January 20, 2004 and Plaintiff's objections to the Magistrate Judge's Report and Recommendation of January 20, 2004.
Plaintiff was previously held at Minnesota Correctional Facility at Stillwater ("MCF-STW").
I. PROCEDURAL HISTORY
Plaintiff filed this action on May 9, 2002 alleging that defendants had violated his civil rights by retaliating against him for writing grievances, initiating lawsuits, and filing charges with the Minnesota Department of Human Rights. More specifically, plaintiff alleges that defendants have withheld, destroyed, and removed his property, disciplined him improperly, transferred him to MCH-OPH, put him in punitive segregation, revoked his accumulated good time, removed him from the education program, harassed him, and deprived him of his right to petition the government for redress of his grievances in violation of the First Amendment to the U.S. Constitution. In his complaint, plaintiff requested injunctive relief and compensatory and punitive damages.
On March 18, 2003, the Magistrate Judge issued an amended pretrial scheduling order requiring that all motions to amend the pleadings or add parties be filed and served by July 1, 2003, all discovery concluded by July 1, 2003, all nondispositive motions filed by August 1, 2003, all dispositive motions filed by September 1, 2003, and the case trial ready on either September 1, 2003 or November 1, 2003 depending on whether dispositive motions had been brought. On June 13, 2003, plaintiff filed a proposed first amended complaint, which attempted to add new defendants, new facts, new claims, and new theories of recovery and relief. On July 11, 2003, plaintiff filed a motion for class certification. Two weeks later, on July 23, 2003, plaintiff requested permission to dismiss his first amended complaint without prejudice, and to file a second amended complaint. No copy of the proposed second amended complaint was attached. On October 24, 2003, the Magistrate Judge issued an order addressing plaintiff's motions to compel discovery, for extension of the pretrial scheduling order, and requesting the court to deny or stay the defendants' motion for summary judgment. On November 14, 2003, the Magistrate Judge granted Plaintiff's motion requesting the Court to order the clerk to provide him copies of exhibits. Finally, on January 20, 2004, the Magistrate Judge issued an order and a report and recommendation recommending that Plaintiff's motion for class certification and defendants' motion to strike Plaintiff's motion for class certification both be denied.
Defendants filed a motion to dismiss or, in the alternative for summary judgment on September 19, 1993. The Court will refer to this as defendants' motion for summary judgment.
Plaintiff has appealed the Magistrate Judge's October 24, 2003, November 14, 2003, and January 20, 2004 orders and has objected to the report and recommendation. The Court will address each in turn.
II. PLAINTIFF'S APPEALS OF THE MAGISTRATE JUDGE'S ORDERS
"The standard of review applicable to an appeal of a magistrate judge's order on a nondispositive issue is extremely deferential." Reko v. Creative Promotions, Inc., 70 F. Supp.2d 1005, 1007 (D. Minn. 1999). This Court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2).
A. Order of October 24, 2003
Plaintiff filed motions to compel discovery, for extension of the pretrial scheduling order, and requesting the court to deny or stay the defendants' motion for summary judgment. The Magistrate Judge granted in part and denied in part the motion to compel discovery, granted Plaintiff's motion for extension, and permitted plaintiff to supplement his response to defendants' motion for summary judgment in light of the discovery order. Plaintiff appeals the order for three reasons.
Initially, plaintiff appeals the Magistrate Judge's direction that he serve his response to defendants' motion for summary judgment on defendants. He asserts that he had filed his only copy of his response with the court. The Magistrate Judge's November 14, 2003 order directed the clerk to provide plaintiff with copies of his submission and extended Plaintiff's time to serve defendants with a copy. Thus, this issue is moot, and Plaintiff's appeal will not be granted on this basis.
Plaintiff appears to confuse the terms "file" and "serve." Documents are "filed" with the court. Documents are "served" on defendants and their counsel. Documents must be both filed and served. Thus, notwithstanding the special circumstances involved with Plaintiff's response to defendants' motion for summary judgment, any documents plaintiff wishes the court to consider must be both filed with the court and served on defendants by mailing separate copies to the court and to defendants' counsel on or before the date specified by the court's order. As plaintiff is currently incarcerated, the Court understands that filing and service will be effected through the prison mail service. The Court will consider the documents filed and served as of the date they are provided to the prison mail service. Therefore, plaintiff should include an appropriately date stamped certificate of service.
Second, plaintiff appeals the Magistrate Judge's order granting an extension of the discovery schedule so that he might supplement his response to defendants' motion for summary judgment based on any new information received from defendants in light of the Court's October 24 order. The Magistrate Judge ordered defendants to comply with the October 24 order by November 7, 2003, and allowed plaintiff until November 20, 2003 to supplement his response. Initially, plaintiff complains that the Magistrate Judge "denied necessary information in Plaintiff's motion to compel," implying that he will not be able to adequately respond to defendants' motion. In light of this Court's determination below that the Magistrate Judge's discovery order was entirely appropriate, this objection is not a basis to overturn the Magistrate Judge's order.
Plaintiff also appears to allege that defendants will not comply with the October 24 order in the time frame allotted, and that he will therefore not be able to supplement his response as ordered. There is no evidence before this Court indicating that defendants have not complied with the Magistrate Judge's discovery order. Thus, the Court finds no basis for Plaintiff's appeal of the Magistrate Judge's extension of the pretrial scheduling order.
Third, plaintiff appeals the Magistrate Judge's determinations regarding his motion to compel discovery. In his motion to compel, plaintiff requested the Court to compel defendants to produce material responsive to seven separate discovery requests. Discovery is permissible of non-privileged information reasonably calculated to lead to the discovery of admissible evidence related to the claim or defense of any party. Fed.R.Civ.P. 26(b)(1). However, relevant discovery may be limited if the court determines that "the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2)); see also Tenkku v. Normandy Bank, 348 F.3d 737, 743 (8th Cir. 2003). Discovery may be further limited to the scope of the claims and defenses asserted in the pleadings, and parties are not entitled to use the discovery process to develop new claims or defenses not reasonably identified in the pleadings. Fed.R.Civ.P. 26 advisory committee's note (2000); see also Crawford-El v. Britton, 523 U.S. 574, 599 (1988) (court had broad discretion to tailor discovery narrowly).
The Magistrate Judge considered each of plaintiff's discovery requests separately, ultimately denying two and granting in part and denying in part the other five. The two requests that were denied were determined to involve either privileged information or information outside the scope of Plaintiff's complaint that would also be difficult and time consuming to comply with. The remaining five requests were granted, but narrowed to only require production of information regarding the named defendants during the time period covered by Plaintiff's complaint. In light of the Magistrate Judge's careful examination of each of plaintiff's requests and the broad discretion granted to the court to manage and define appropriate discovery, this Court cannot say that the Magistrate Judge's determinations were clearly erroneous or contrary to law.
In his appeal, plaintiff also objects to the Magistrate Judge's "refusal to grant Plaintiff's amended complaints when plaintiff followed the court's order concerning amendment" and "attempting to dismiss any individual not named as a party, to prevent plaintiff from naming individuals in future litigation for constitutional violations." The Magistrate Judge's order dismissing Plaintiff's first amended complaint without prejudice and denying permission to file a second or third amended complaint was not filed until January 20, 2004, nearly three months after this appeal. Thus, these objections appear to have been directed towards defendants' motion to strike Plaintiff's first amended complaint. This issue was not addressed in the Magistrate Judge's October 24, 2003 Order, and thus no appeal was possible at that time. Plaintiff's attempts to amend his complaint are discussed in section II(c).
B. Order of November 14, 2003
Plaintiff filed a motion requesting the Court to order the clerk of court to provide plaintiff copies of his exhibits. Specifically, plaintiff requested copies of the exhibits he filed on October 20, 2003 and in March 2003 so that he could serve defendants with these exhibits as part of his response to defendants' motion for summary judgment. The Magistrate Judge granted the motion, and the clerk mailed plaintiff a copy of the exhibits submitted with his opposition to defendants' motion for summary judgment that plaintiff filed on October 20, 2003 but did not serve on defendants. The clerk did not find any exhibits filed by plaintiff in March 2003, and therefore could not send him copies of any such documents.
Plaintiff appears to object that the clerk did not send him copies of the exhibits that he attempted to file on March 12, 2003 with his motion for extension of time to file reply memorandum, but which were returned to him by the clerk. The attempted exhibits were copies of defendants' admissions, and were returned because Federal Rule of Civil Procedure 5(d) does not permit discovery to be filed until it is either used in a court proceeding or the court orders filing. Plaintiff states that the Clerk returned the exhibits that he had attempted to file along with a notice indicating that they had not been filed. Thus, plaintiff has received copies of all of the exhibits that he requested. There is no merit to this portion of plaintiff's appeal.
Plaintiff's real purpose in appealing the November 14, 2003 order appears to be to obtain a further extension of time in which to supplement his response to defendants' motion for summary judgment. In the November 14 order, the Magistrate Judge specified that Plaintiff's supplemental submission must be filed and served on defendants no later than November 20, 2003 and that failure to comply with that deadline would result in the court not considering any such submission in deciding defendants' motion for summary judgment.
Federal Rule of Civil Procedure 16 authorizes the court to issue a scheduling order limiting, among other things, the time to file motions. Fed.R.Civ.P. 16(b). A scheduling order "shall not be modified except upon a showing of good cause and by leave of . . . a magistrate judge." Id. The Magistrate Judge granted plaintiff multiple extensions of time in which to file and serve his opposition and supplemental opposition to defendants' motion for summary judgment, but set November 20, 2003 as the final deadline for responding to defendants' motion for summary judgment. This Court has no information indicating that plaintiff has not received any of the discovery to which he is entitled, or that he did not receive it in time to permit him to supplement his response to defendants' motion for summary judgment in accordance with the Magistrate Judge's October 24, 2003 order. Therefore, the Magistrate Judge's November 14, 2003 order was not clearly erroneous or contrary to law and Plaintiff's appeal is denied.
C. Order of January 20, 2004
Plaintiff filed motions for permission to dismiss his first amended complaint, for permission to file a second amended complaint, to amend a complaint that's amended and supplemental, to dismiss without prejudice certain defendants, to order defendants to withhold his disciplinary hearing tapes and transcribe them into documents for judicial proceedings, and requesting sanctions. In her January 20, 2004 Order, the Magistrate Judge granted Plaintiff's motions to dismiss the first amended complaint and to dismiss without prejudice certain defendants, and denied all of the other motions. As part of his objections to the Magistrate Judge's report and recommendation also issued on January 20, 2004, plaintiff appeals several of the denials. An appeal of a Magistrate Judge's order must be filed within 10 days of service of the order, unless a different time is ordered by the court. LR 72.1(b)(2). Plaintiff requested and received a thirty-day extension of time in which to object to both the report and recommendation and order. Thus, his appeal was timely and the Court will consider his objections to the Magistrate Judge's order.
For simplicity's sake, the Court will refer to this as Plaintiff's motion for permission to file a third amended complaint.
Initially plaintiff objects to the Magistrate Judge's denial of permission to file a third amended complaint. The March 18, 2003 amended pretrial scheduling order required all motions to amend the pleadings or add parties to the action to be filed and served on defendants by July 1, 2003. On June 13, 2003, more than one year after the original complaint was filed and just weeks before the July 1 deadline, plaintiff filed a proposed first amended complaint. The proposed first amended complaint was not accompanied by a motion or other request to file an amended complaint and was not served contemporaneously on defendants. The amended complaint attempted to add eleven new defendants and delete five original defendants, and included an entirely new fact section, new claims, and new theories of recovery.
Plaintiff's first amended complaint was eventually served on defendants on July 2, 2003.
On July 23, 2003, plaintiff filed motions for permission to dismiss his first amended complaint without prejudice and requesting permission to file a second amended complaint. Plaintiff explained that his first amended complaint improperly included events that occurred after the original complaint had been filed, and he wanted to file a second amended complaint excluding the improper events, but adding several other claims. The proposed second amended complaint was not attached to the motion. On September 11, 2003 plaintiff moved for permission to file a third amended complaint. Plaintiff explained that this third amended complaint would contain some previously unmentioned events that occurred before the original complaint was filed and that 'relate back' to the original complaint, and some events that have occurred since the original complaint was filed but that have 'some relationship' to the claims in the original complaint. Plaintiff also sought to add nine new defendants and, in a separate motion, to dismiss five of the defendants.
Federal Rule of Civil Procedure 15(a) permits a party to amend a pleading once, as a matter of course, "at any time before a responsive pleading is served." Thus, plaintiff could have, without first receiving permission from the court, amended his complaint before July 9, 2002, when defendants filed and served their answer to the complaint. Once a responsive pleading has been served, "a party may amend the party's pleading only be leave of court." Therefore, Plaintiff's first, second, and third amended complaints, all of which were filed or proposed after July 9, 2002, could only be filed with permission from the court. "Leave [to file an amended pleading] shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Local Rule 15.1 clarifies this rule, by providing that a motion to amend a pleading shall be accompanied by a copy of the proposed amended pleading so that the reviewing court can determine whether permitting the amendment is in the interests of justice. Federal Rule of Civil Procedure 16(b) and Local Rule 16.3 permit a court to require a party who has filed a motion to amend their complaint after the scheduling order deadline to demonstrate good cause for permitting such an untimely amendment.
Rule 15(a) also permits amendment pursuant to written consent of the adverse party. Defendants did not, in this case, give any such consent.
Plaintiff's first Amended Complaint, filed June 13, 2003 without a request for permission, was dismissed at Plaintiff's request.
The Magistrate Judge denied both requests to amend the complaint, noting that plaintiff had not supplied a proposed amended complaint in either case, and that without the proposed changes, she could not determine what degree of prejudice such a late amendment would have on defendants. The Magistrate Judge explained further that Plaintiff's descriptions of the proposed amendments indicated substantial changes to the parties, factual basis, claims, and grounds for relief, she could not determine that Plaintiff's proposed amended complaints would not unduly prejudice the defendants in light of the short period of time left before the trial ready date set in the pretrial scheduling order. Finally, she stated that plaintiff had not provided any reason, let alone shown good cause, for amending the complaint after the expiration of the pretrial scheduling order deadline. The Magistrate Judge's reasoning closely follows the legal standards enunciated above, and her order denying Plaintiff's requests to file second and third amended complaints was neither clearly erroneous nor contrary to law.
Plaintiff appears to believe that the pretrial order deadline was changed to December 1, 2003. The Magistrate Judge's October 24, 2003 order specified that plaintiff would be permitted to supplement his response to defendants' motion to dismiss or for summary judgment on or before November 20, 2003, and that defendants would be permitted to reply to Plaintiff's response no later than December 1, 2003. However, the March 20, 2003 Scheduling Order requiring any amendments of pleadings or additions of parties to be completed on or before July 1, 2003 remained otherwise unchanged. This date was reiterated in the Amended Scheduling Order dated September 8, 2003.
Plaintiff also appeals the Magistrate Judge's denial of his motion for sanctions. Plaintiff states that defendants have not produced documents concerning "plaintiff's request for production of documents concerning Plaintiff's transfers, disciplinary hearing tapes, and discovery that reflect the reasons for any transfers, promotions, resignations, retirements, and terminations, of all the defendants." Aside from this bare allegation, plaintiff has not presented any evidence that defendants have not complied with the Magistrate Judge's discovery orders.
Whether to impose sanctions for failure to comply with discovery orders is within the discretion of the court. Boardman v. National Medical Enterprises, 106 F.3d 840, 842 (8th Cir. 1997). As stated above, there is no evidence that defendants failed to comply with the Magistrate Judge's discovery orders. The Court is aware that nine of twelve tapes of disciplinary proceedings involving plaintiff, which the Magistrate Judge ruled relevant to the action and ordered made available to plaintiff, were destroyed pursuant to policy prior to the Magistrate Judge's order that they be produced or made available to plaintiff. Thus, although this Court agrees with the Magistrate Judge that the prison's policy of destroying disciplinary proceeding recordings after 25 days is unfortunate, this Court must also agree that sanctions are not warranted by defendants adherence to their clearly defined policy. The denial of sanctions was not clearly erroneous or contrary to law.
According to policy, audiotapes of inmate disciplinary proceedings are kept through the appeals process. Inmates have 25 days after a disciplinary hearing to appeal the decision. Thus, if no appeal is taken, the tapes are destroyed 25 days after the hearing. Defendants did not inform the Magistrate Judge of this policy, or that nine of the tapes requested by plaintiff in February, 2003, included in Plaintiff's motion to compel in May, 2003, and ordered produced in October, 2003 had already been destroyed. That defendants did not believe the tapes relevant to the issue at hand should not relieve them of their obligation to respond fully to discovery matters and keep the court fully apprised of the facts of the situation.
Notwithstanding this determination, the Court is of the opinion that the policy of destroying tapes of disciplinary proceedings after just 25 days is at odds with the pursuit of justice. Inmate disciplinary proceedings are often relevant to prisoner litigation, which almost by definition cannot be brought until after the 25-day disciplinary proceeding appeal period has run. Although the Court recognizes that maintaining recordings of disciplinary proceedings indefinitely, or even until a prisoner's release, would be an untenable proposition, it is suggested that the policy be revisited to determine whether it might be possible to better ensure that this potentially important evidence is available in situations like the current one.
III. Objections to Report and Recommendation of January 20, 2004
On July 11, 2003, plaintiff moved for Class Certification. Defendants responded with a motion to strike Plaintiff's motion for class certification. In a report and recommendation dated January 20, 2004, the Magistrate Judge recommended that the Court deny both motions. After being granted an extension of time in which to file, plaintiff filed objections to the report and recommendation. The Court has conducted a de novo review of Plaintiff's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2), and adopts the report and recommendation of the Magistrate Judge.
Defendants did not object to the Magistrate Judge's recommendation that their motion to strike be denied. Thus, the Court will adopt this recommendation without farther discussion.
Plaintiff moves for class certification under Federal Rule of Civil Procedure 23(a), alleging that his complaint supports a class action on behalf of "all present and future minority prisoners and prisoners who execute their rights of access to the courts, who seeks an injunctive relief and declaratory relief against every Minnesota Department of Corrections' employees to refrain from all forms of discrimination and interference of access to the court's in retaliation."
Plaintiff appears to be referring to his proposed first amended complaint. However, in light of the decision above to uphold the Magistrate Judge's orders, the only operative complaint in this case is the original complaint filed May 9, 2002.
For a class to qualify for certification, each of the requirements of Rule 23(a) must be satisfied. Rule 23(a) requires the party requesting certification to establish each of the following: (1) that the members of the proposed class are so numerous that joinder of the individual claims would be impracticable; (2) that there is commonality among issues of law or fact raised by the class members; (3) that the claims of the proposed class representatives are typical of the claims of the class members; and (4) that the proposed class representatives will adequately represent the interests of the class.
If all requirements of 23(a) are satisfied, the class proponents must also satisfy one of the three requirements of 23(b). However, as plaintiff has not satisfied the requirements of Rule 23(a), the Court need not proceed to the next step and consider Rule 23(b).
Plaintiff stated that there are common questions of law or fact, namely that defendants have an unwritten policy of racial discrimination and retaliation against minority prisoners and prisoners who file grievances, and that this policy affects all minority prisoners and prisoners who file grievance. Plaintiff asserts that his interests are not adverse to the proposed class, apparently because he is a minority prisoner and files grievances. Plaintiff's motion also alleged multiple assaults against him and other inmates by various prison employees. However, the allegations did not specify dates for the alleged assaults, and omitted substantial relevant information including the names of the accused prison employees and, in several instances, names of the alleged victims. Further, none of these alleged events were contained in the Complaint. Finally, the motion for class certification was not accompanied by a notice of motion, affidavits or memorandum of law, proposed order, cover letter, or affidavit of service.
The class proposed by plaintiff would certainly be so large that joinder of each individual member would be impracticable as required by the first prong of Rule 23(a). However, the Magistrate Judge properly determined that plaintiff has failed to establish common issues of law or fact, that his claims are typical of the claims of the rest of the class members, or that he can adequately represent the interests of the class. Plaintiff's complaint does not either allege or establish that the retaliatory actions that he has allegedly been subjected to have also been suffered by all minority prisoners or prisoners who have filed grievances while in prison. Further, the incidents alleged in Ms motion for class certification describe a variety of actions directed towards a small number of prisoners, without providing any context for those actions. This information, even if accepted, is insufficient to establish a pattern of behavior, or policy, among prison employees of discriminatory or retaliatory treatment towards the extremely large and varied group of people included in the proposed class. Thus, the Court cannot determine that plaintiff and the proposed class share issues of law or fact, plaintiffs claims are sufficiently similar to those other class members might be entitled to bring, or that plaintiff, as a pro se litigant, could adequately pursue these claims on behalf of such a large and varied class.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that:1. The Magistrate Judge's Order of October 24, 2003 [Docket No. Ill] is AFFIRMED.
2. The Magistrate Judge's Order of November 14, 2003 [Docket No. 113] is AFFIRMED.
3. The Magistrate Judge's Order of January 20, 2004 [Docket No. 131] is AFFIRMED.
Further, the Court OVERRULES Plaintiff's objection [Docket No. 136] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 132]. Accordingly, IT IS FURTHER HEREBY ORDERED that:
4. Plaintiff's motion for class certification [Docket No. 67] is DENIED.
5. Defendants' motion to strike Plaintiff's motion for class certification [Docket No. 68] is DENIED.