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Yearby v. CA Dep't of Corrections

August 31, 2009

MARKUS TRUVELL YEARBY, PLAINTIFF,
v.
CA DEP'T OF CORRECTIONS, ET AL., DEFENDANTS.



ORDER

Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are various motions filed by plaintiff.

MOTION FOR RECONSIDERATION AND MOTION TO AMEND

By way of background, on April 14, 2008, the court found that plaintiff's first amended complaint appeared to state cognizable claims against defendant Dudley. Shortly thereafter, the court ordered the United States Marshal to serve plaintiff's complaint on the defendant. On July 29, 2008, defendant Dudley filed an answer to the complaint.

On September 24, 2008, plaintiff filed a motion to amend his complaint, together with a proposed second amended complaint. Defendant Dudley filed a statement of non-opposition to plaintiff's motion. The court, however, denied plaintiff's motion without prejudice and ordered him to file a new motion to amend, together with a proposed third amended complaint that demonstrated compliance with the California Tort Claims Act presentation requirement.

In accordance with the court's order, plaintiff filed a new motion to amend, together with a proposed third amended complaint. Defendant Dudley again filed a statement of non-opposition to plaintiff's motion to amend, and the court granted plaintiff's motion and filed plaintiff's third amended complaint.

Shortly thereafter, plaintiff filed another third amended complaint. The court advised plaintiff that the filing of another third amended complaint was unnecessary and that the court granted his motion to amend based on the allegations in his proposed third amended complaint. The court ordered plaintiff's most recently filed third amended complaint stricken.

Plaintiff has since filed a motion for reconsideration of the court's order striking his most recently filed third amended complaint. Therein, he claims that his proposed third amended complaint was a "rough draft" and his most recently filed third amended complaint was the final draft. He has also filed a separate motion to allow the case to proceed on his most recently filed third amended complaint. Since filing these motions, however, plaintiff has filed yet another motion to amend, together with a proposed fourth amended complaint.

In light of plaintiff's motion to amend, the court will deny plaintiff's motion for reconsideration and motion to allow the case to proceed on plaintiff's most recently filed third amended complaint as moot. With regards to plaintiff's motion to amend, the court finds that plaintiff's proposed fourth amended complaint appears to state cognizable claims against defendant Dudley and adds some clarity to his factual allegations. For these reasons, and in light of the confusion surrounding plaintiff's previously filed amended complaints, the court will grant plaintiff's motion to amend and allow the case to proceed on plaintiff's fourth amended complaint. See Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires.").

Plaintiff is advised, however, that he need not seek leave to amend his complaint each time he believes he can further clarify certain factual allegations or technical aspects of his complaint. Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Here, plaintiff's fourth amended complaint appears to state cognizable claims against defendant Dudley and complies with Rule 8(a)(2). As such, plaintiff should proceed on his fourth amended complaint and move forward with discovery of his claims. Plaintiff is cautioned that if he continues to seek leave to amend as he has done so recently, the court will begin to question whether plaintiff is intentionally delaying this case and whether he is willing to diligently prosecute this action as he is required to do.

MOTIONS FOR COURT ASSISTANCE

Plaintiff has filed two motions for court assistance. First, plaintiff appears to seek court assistance in obtaining a copy of his deposition transcript in order to amend any answers that were unclear or incorrectly expressed. Plaintiff alleges that he believed he would be given an opportunity to make corrections to the transcript, but the firm that recorded the deposition refused to provide him with a copy of it without him paying for it first.

On January 30, 2009, defense counsel took plaintiff's deposition. If plaintiff timely requested an opportunity to review his deposition transcript to make corrections, he should have been allowed to do so. See Fed. R. Civ. P. 30(e). Unfortunately, plaintiff did not file this motion until nearly six months after his deposition was taken. As a practical matter, plaintiff's deposition has likely been finalized, and the court will not order its re-opening for plaintiff's corrections. To the extent that the defendant relies on his deposition testimony in any forthcoming motion for summary judgment, plaintiff may file with his opposition a declaration signed under penalty of perjury explaining why the portions of the deposition testimony that the defendant relies on are inaccurate or incomplete. Plaintiff is strongly cautioned, however, that the court will not allow him to rewrite deposition testimony. "While the language of FRCP 30(e) permits corrections 'in form or substance,' this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment." Hambleton Bros. Lumber Co. v. Balkin Enters., 397 F.3d 1217, 1224-26 (9th Cir. 2005).

Plaintiff also appears to seek court assistance to allow him to communicate with a potential witness. Plaintiff explains that he is usually only able to communicate with immediate family. However, he emphasizes that the individual he seeks to communicate with is a material witness.

In his motion, plaintiff has not listed the potential witness' name, stated whether the potential witness is incarcerated, or explained why he believes he needs to communicate with this witness. Nor has plaintiff indicated that he has sought permission from prison officials to communicate with this witness but has been denied such permission. Moreover, at this time, defendant Dudley has not answered plaintiff's fourth amended complaint and discovery is ...


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