The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff's amended complaint, filed April 20, 2009, alleging that defendants used excessive force on plaintiff on January 19, 2005. Pending before the court is the motion for summary judgment filed by defendants Sheriff John McGinness and the Sacramento County Jail. As explained more fully below, the court recommends that plaintiff not be permitted leave to further amend, and that defendants' motion for summary judgment be granted.
II. The Instant Record and Plaintiff's Deposition Testimony
Review of the court record demonstrates much confusion as to the actual date and nature of plaintiff's claims alleged herein, as well as whether plaintiff intended to pursue allegations he now claims occurred on different days. The resolution of the instant case will turn on what information plaintiff provided to the court and when, as well as when or whether plaintiff was aware of particular claims and the actual dates they occurred, and whether plaintiff should be allowed to file a third amended complaint at this late stage of the proceedings. Accordingly, the court will first review the court record and pertinent portions of plaintiff's deposition testimony.
A. Review of Instant Record
Following is a review of the instant record, with an emphasis on plaintiff's filings. Plaintiff was housed in the Sacramento County Main Jail from February 7, 2005, until July 7, 2005. Over three years later, plaintiff filed the original complaint on December 16, 2008. On January 28, 2009, plaintiff's complaint was dismissed, and plaintiff was granted leave to file an amended complaint. (Dkt. No. 8.) After receiving an extension of time, plaintiff filed the amended complaint on April 20, 2009. (Dkt. No. 18.) On August 7, 2009, defendant Sacramento County Jail, and on September 28, 2009, defendant McGinness, filed motions to dismiss this action as barred by the statute of limitations.
On November 23, 2009, plaintiff was directed "to clarify whether the May 16, 2005, excessive force incident is different from the January 19, 2005, excessive force incident," because the original complaint alleged plaintiff was subjected to excessive force on May 16, 2005,*fn1 and the amended complaint alleged plaintiff was subjected to excessive force on January 19, 2005. (Dkt. No. 34.) The court was uncertain whether plaintiff was pleading two separate incidents of excessive force, or was simply correcting the date the one alleged incident occurred. (Dkt. No. 34.) Plaintiff filed a "declaration"*fn2 on February 4, 2010, stating that "to the best of plaintiff's recollection the events occurred on or about January 19, 2005." (Dkt. No. 39 at 3.) On April 1, 2010, defendants' motions to dismiss were denied, and defendants filed an answer on April 20, 2010. A discovery and scheduling order issued on May 11, 2010. (Dkt. No. 61.) The scheduling order provided that all pretrial motions shall be filed on or before November 8, 2010. (Id.)
Plaintiff's motion to file a second amended complaint was denied on October 21, 2010. (Dkt. No. 81.) Plaintiff had attempted to add 32 new defendants and allegations concerning nine different incidents during 2005, none of which occurred on January 19, 2005.
(Dkt. No. 81 at 3, see Dkt. No. 75 (plaintiff's proposed second amended complaint).) In addition, the court found the second amended complaint failed to comply with Rule 8 of the Federal Rules of Civil Procedure, and plaintiff sought to improperly join unrelated incidents spanning July 7, May 31, April 15, April 11, April 8, April 4, March 21, March 1, and February 28 of 2005, against multiple defendants, involving different legal issues, in violation of Rules 18(a) and 20 of the Federal Rules of Civil Procedure. (Dkt. No. 81.)
In the opposition to the motion to amend, defendants suggested that the alleged excessive force incident may have actually occurred on April 8, 2005, but in light of plaintiff's February 4, 2010 filing wherein plaintiff stated it occurred on or about January 19, 2005, the court was reluctant to concur. (Dkt. No. 81 at 5-6.) Neither the motion to amend nor the proposed second amended complaint explained the omission of events occurring on January 19, 2005, or the proposed addition of the newly-named defendants.
Plaintiff failed to timely object to this court's characterization or
clearly concede that the sergeant's court incident actually occurred
on April 8, 2005. Rather, on December 2, 2010, plaintiff filed an
untimely motion for reconsideration by the district court,*fn3
claiming both the original complaint and the amended
complaint "do not contain any correct names, dates, or times of any
occurrences, and the first original complaint was in error." (Dkt. No.
87 at 2.) With regard to his amended complaint, plaintiff stated that
he "wrote out [his] story to the jailhouse lawyer describing a[n]
incident by incident occurrence of excessive force." (Dkt. No. 87 at
3.) In this story, plaintiff described his claims based on incidents
occurring after sergeant's court, two deputies coming into his cell
and beating him so that he allegedly suffered a broken nose, cheekbone
and eyesocket, and claimed he was "tortured and . . . denied basic
necessities on several different occasions." (Dkt. No. 87 at 3.)
Plaintiff alleged the jailhouse lawyer wrote a completely different
story than plaintiff provided, but because the jailhouse lawyer
insisted, plaintiff filed the amended complaint. (Dkt. No. 87 at 3.) However,
before filing the amended complaint, plaintiff did change the date,
because plaintiff wanted to be able to explain the cruel and unusual
8th Amendment violations started on/or about the time he first arrived
at Sacramento County Jail adseg and continued until plaintiff left out
of fear for his life.c
(Dkt. No. 87 at 3-4.) Plaintiff also claimed he could not recall any names, dates or times due to post traumatic stress disorder, so [plaintiff] wasn't able to write an accurate complaint until he received discovery on or about April 15, 2010. (Dkt. No. 87 at 4.) Plaintiff then claimed prison officials' interference with plaintiff's legal and writing materials, as well as access to the law library, also prevented plaintiff from earlier seeking leave to amend. (Id.) However, rather than confirm that January 19, 2005 was an incorrect date, or clarify that April 8, 2005, was the correct date, plaintiff stated that May 16 and January 19, 2005, dates were "the same as plaintiff was tortured continuously and the cumulative injuries" violated the Eighth Amendment. (Dkt. No. 87 at 5.) Later, plaintiff went on to state that the January 19 date is incorrect, and that the May 16, 2005 date was not chosen by plaintiff, "because plaintiff was attempting to recall the earliest date as to acknowledge the fact plaintiff was tortured." (Dkt. No. 87 at 7.) Plaintiff claimed he attempted to cure the record, without discovery, back in January 2010,*fn4 but was being helped by a jailhouse lawyer "that better understood" that plaintiff's amended complaint was "all blended into one statement claim and several transactions and occurrences of cumulative acts of excessive force, cruel and unusual punishment, amounting to torture over a four to five month period." (Dkt. No. 87 at 6.) Plaintiff's motion for reconsideration was denied by the district court on December 15, 2010, as untimely filed. (Dkt. No. 92.)
In plaintiff's motion to file a second amended complaint, plaintiff claimed, in toto, that he moved to amend to establish names, dates, and incidents, in the interest of justice. (Dkt. No. 74.)
In his January 18, 2011 declaration in opposition to the motion for summary judgment, plaintiff reiterated that the amended complaint was drafted by a jailhouse lawyer who failed to characterize plaintiff's injuries as a broken nose, eye-socket, cheekbone, etc., rather than a "severe beating." (Dkt. No. 97 at 2.) Plaintiff now asserts that the only time he was beaten was on July 7, 2005. (Id.) With regard to the incorrectly pled date of January 19, 2005, plaintiff states:
Wherefore and nevertheless if plaintiff can't name dates February 2005 to July 7, 2005 as transaction and occurrences that [arose] out of the same acts or series of acts that amounted to the plaintiff being tortured, and this is the only reason plaintiff alleged the incorrect date of January 19, 2005, because before plaintiff obtained discovery and knew February 7, 2005 was the date he could remember, and all plaintiff was trying to do was assert the beginning of the transaction and occurrence that were all a series of the same acts of torture and abuse. (Dkt. No. 97 at 2.)
B. Plaintiff's Deposition
The parties have submitted plaintiff's testimony from his August 6, 2010 deposition, in which plaintiff concedes that he arbitrarily picked the January 19, 2005 date. (Dkt. No. 94 at 40.) Plaintiff stated: my memory and my posttraumatic stress syndrome, the dates and everything -- I had to file -- due to the statute of limitations, I had to file the claim erroneously, and then I had to amend it erroneously.
It needs to be amended again in the interest of justice.
(Id.) After defense counsel noted that plaintiff's amended complaint is detailed on the incident involving sergeant's court on April 8, 2005, plaintiff disputed that the amended complaint was accurate, and the following exchange took place:
A. [Plaintiff] In that complaint it says that I woke up in a puddle of blood.
Q. [Defense Counsel] And feces.
A. That['s] a whole -- all incidents mixed together. That's what I'm trying to tell you.
The guy that wrote my complaint, me not knowing the law, put them all together, and it's a whole bunch of incidents that happened in a matter of time while I was in custody at Sacramento, and it needs to be amended and it needs to be separated, it needs -- everything, the dates, the time, the people, the places, because it's incorrect. And for me to speak on it, I would be speaking on this, but I'd also be speaking on another incident because I didn't wake up on this incident in -- with blood and feces and stuff like that.
Q. On the 4/8/05 incident?
Or my nose broke or none of that. That's [a] whole bunch of incidents combined. All of it happened, but it's all mashed together because of my memory of the date, the times, the people. It had to be filed that way.
Q. All right. Going back to the 4/8/05 incident, just so the record is clear, you didn't wake up in blood, feces, urine, unconscious on your cell floor that day?
Q. But not covered in urine and feces and stuff?