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Hubbard v. Hougland

April 5, 2010

DARRYL HUBBARD, PLAINTIFF,
v.
C.D. HOUGLAND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Introduction

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' November 10, 2009, motion to dismiss for failure to exhaust administrative remedies. Also pending is plaintiff's October 23, 2009, request to file a third amended complaint, his February 8, 2010, request to file a fourth amended complaint and proposed fourth amended complaint, improperly labeled as a third amended complaint, and his March 4, 2010, request to file a fifth amended complaint and fifth amended complaint, also improperly labeled as a third amended complaint.

For the reasons discussed below, the court finds that plaintiff's request to file the fifth amended complaint supersedes the requests to file the third and fourth amended complaints. Accordingly, the motions to file the third and fourth amended complaints are vacated. On March 1, 2010, defendants filed an opposition to file the fourth amended complaint. Because the fifth amended complaint is substantially similar to the fourth amended complaint, the court construes defendants' opposition as addressing the fifth amended complaint.

For the following reasons, plaintiff's motion to file the fifth amended complaint shall be denied. The court will issue a separate order addressing defendants' motion to dismiss the second amended complaint.

Background

On April 29, 2009, the undersigned ordered service of the original complaint as to defendants Hougland and McBride. In the original complaint, plaintiff alleged that on July 7, 2008, defendant Hougland hit him on the back of the head so hard that he lost consciousness. When plaintiff regained consciousness, defendant Hougland was on top of him, hitting him on the head and telling him to stop resisting. Defendant McBride hit plaintiff on the back of the head.

On September 9, 2009, plaintiff filed a first amended complaint. The first amended complaint contained the same allegations as the original complaint. On September 14, 2009, defendants filed an answer to the original complaint. On September 21, 2009, the court ordered defendants to file a response to the September 9, 2009, first amended complaint.

On September 23, 2009, plaintiff filed a second amended complaint. This complaint alleged that in early March 2008, defendant Hougland grabbed plaintiff's pill bag from him and dropped the contents on the ground. After plaintiff picked up the papers that had been in the pill bag, defendant Hougland grabbed them from him and dropped the papers that had been in the bag one by one on the ground. After he handed a few papers back to plaintiff, he said, "I'm done." Plaintiff responded, "No you're not. Pick them up." A female officer picked up the papers and handed them to defendant Hougland. He then shoved them at plaintiff and said, "I'm going to get your fat ass." Plaintiff then submitted two inmate grievances regarding the incident which received no response.

In the first amended complaint, plaintiff went on to allege that one week following the March 2008 incident, he was brought to the program office and placed in a holding cage. Defendant Hougland approached and said, "The first chance I get I'm going to kick your fat ass. So write that up asshole!" Plaintiff filed another administrative grievance that was not responded to. Plaintiff claims that after filing that grievance, the harassment by defendants Hougland and McBride did not stop. Plaintiff then goes on to describe the July 7, 2008, incident alleged in the original and first amended complaints.

On October 8, 2009, defendants filed an answer to the September 9, 2009, amended complaint. On October 23, 2009, the undersigned ordered defendants to file a response to the second amended complaint.

On October 23, 2009, plaintiff filed a third amended complaint. This complaint contains the allegations regarding the early March 2008 incident and the July 2008 incident described in the second amended complaint. This complaint also contains a declaration by plaintiff as well as exhibits addressing his alleged attempts to exhaust administrative remedies.

On November 10, 2009, defendants filed the pending motion to dismiss addressing the second amended complaint.

On February 8, 2010, plaintiff filed a fourth amended complaint. On March 4, 2010, plaintiff filed ...


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