(PC) Surrell v. CDCR Secretary of Operations

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ALVON SURRELL, SR., No. 2:20-cv-00368-TLN-CKD 12 Plaintiff, 13 v. ORDER CDCR SECRETARY OF OPERATIONS, et al., Defendants.

17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court are several motions related to discovery. The court will address each motion in turn as well as plaintiff’s motion for leave to file a first amended complained.

21 I. Procedural History 22 In the present action, plaintiff is challenging the conditions of his confinement and his transfer to a “50-50 yard” after filing a grievance about his living conditions at Deuel Vocational Institution (“DVI”). See ECF No. 16 at 2-4. On June 12, 2020, the court screened plaintiff’s complaint and gave him the option of proceeding on the Eighth Amendment challenges to his living conditions and the First Amendment retaliation claim against defendant Burton, or of amending his complaint to fix the deficiencies with the other claims and defendant. ECF No. 16 at 3-4. Plaintiff elected to proceed on the cognizable claims identified in the court’s screening order. ECF No. 27. Defendant filed an answer to the complaint on April 29, 2021. ECF No. 59.

2 The court entered a discovery and scheduling order that set the discovery cut-off date as September 3, 2021 and the pretrial motions deadline as November 30, 2021. ECF No. 62.

4 II. Discovery Motions 5 In plaintiff’s first motion related to discovery, he requests an additional 30 days to respond to defendant’s interrogatories that were propounded on him. ECF No. 72. Plaintiff does not indicate when the interrogatories were served on him or why he needs an additional 30 days to respond. However, in a subsequently filed motion to modify the discovery and scheduling order, defendant indicates that he received plaintiff’s responses to the requests for interrogatories on August 2, 2021. ECF No. 87 at 1. Therefore, plaintiff’s motion for an extension of time will be denied as moot.

12 Plaintiff also filed a motion for an extension of time to respond to defendant’s request for production of documents. ECF No. 80. In this motion plaintiff indicates that he needs additional time due to COVID-19 program modifications at the prison where he is located. ECF No. 80. If granted the extension, plaintiff indicates that the new deadline to respond would be September 3, 2021. ECF No. 80.

17 On September 13, 2021, defendant filed a motion to modify the discovery and scheduling order governing this case. ECF No. 87. Defendant seeks to extend the discovery cut-off and pretrial motions deadline by 60 days. ECF No. 87. This extension is necessary, according to defendant, because he is waiting on all of plaintiff’s discovery responses before scheduling his deposition. ECF No. 87 at 2. Plaintiff filed a statement of non-opposition to defendant’s motion to modify the discovery and scheduling order. ECF No. 90.

23 For good cause shown, the court will grant plaintiff’s motion for an extension of time to respond to defendant’s request for production of documents as well as defendant’s motion to modify the discovery and scheduling order in this case. As a result, the discovery cut-off date will be extended to November 2, 2021 and any pretrial motions shall be filed on or before January 31, 2022.

28 Plaintiff has also filed a motion for leave of court to propound more than 25 interrogatories, admissions, and requests for production of documents on defendant. ECF No. 75.

2 Once again, plaintiff does not offer any explanation why additional discovery requests are necessary in this case. ECF No. 75. By way of opposition to this motion, defendant contends that plaintiff has not made the necessary ‘particularized showing’ that additional discovery is necessary. ECF No. 79.

6 The court will deny plaintiff’s motion to propound more than 25 interrogatories, admissions, and requests for production of documents. This case does not appear to be complex and plaintiff does not provide any explanation why additional discovery requests are necessary.

9 See Fed. R. Civ. P. 33(a)(1) (stating that “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.”). Accordingly, the motion is denied.

11 Plaintiff filed a motion requesting assistance from the court in serving interrogatories on defendant. ECF No. 88. He also requests that a court hearing be scheduled in this case, but he does not indicate the purpose for any hearing. ECF No. 88 at 2. Attached to this motion is plaintiff’s first set of interrogatories to defendant. ECF No. 88-1.

15 The court’s discovery and scheduling order of May 3, 2021, advised the parties that “[d]iscovery requests shall not be filed with the court except when required by Local Rules 250.1, 250.2, 250.3 and 250.4.” ECF No. 62 at 5. In the same order, plaintiff was cautioned that filing discovery requests with the court may result in an order of sanctions. ECF No. 62 at 5. Despite these admonitions, plaintiff filed a complete set of interrogatories with the court despite the lack of any pending motion to compel. In light of plaintiff’s failure to comply with this court order, his motion to serve interrogatories and to schedule a hearing will be denied.

22 III. Plaintiff’s Motion for Leave to File an Amended Complaint 23 In his motion to amend, plaintiff seeks to add additional defendants to his complaint based on alleged retaliatory acts taken against him since filing his complaint. ECF No. 69. Plaintiff filed a proposed first amended complaint that is 141 pages including attachments. ECF No. 70.

26 The proposed amended complaint names the wardens at three different prisons and contains a total of 60 individual defendants, including John and Jane Does. ECF No. 70. With respect to the claims that occurred while plaintiff was confined at DVI, the allegations in the proposed amended complaint concern inadequate medical treatment; threats to plaintiff’s safety due to various officials’ attempts to orchestrate an assault against him by other inmates; and the issuance of false disciplinary reports.

4 Defendant filed an opposition to plaintiff’s motion for leave to amend. ECF No. 77.

5 According to defendant, leave to amend should be denied because the proposed amended complaint fails to comply with Rule 8’s requirement that a claim be limited to “a short and plain statement.” ECF No. 77 at 3 (citing Fed. R. Civ. P. 8(a)). The proposed amended complaint is a long narrative that fails to connect individual defendant to specific constitutional violations. ECF No. 77 at 3-4. Additionally, the amended complaint contains claims that are unrelated to the claims against defendant Burton and joinder is improper under Rule 20(a)(2) of the Federal Rules of Civil Procedure. Id. Defendant also contends that allowing amendment would be futile because the proposed amended complaint fails to state a claim for relief. Id. at 5.

13 A. Legal Standards 14 Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint after a responsive pleading has been filed may be allowed by leave of court and “shall be freely given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile. Additionally, the district court may consider the factor of undue delay.” Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999) (citations omitted).

21 B. Analysis 22 In this case, the court has reviewed the proposed first amended complaint in determining whether leave to amend should be granted. The proposed amended complaint attempts to join unrelated defendants and claims to this civil action including defendants at multiple prisons. To name different defendants in the same lawsuit, however, a plaintiff must satisfy Rule 20, which governs joinder of parties. Permissive joinder of multiple defendants in a single lawsuit is allowed only if: (1) a right to relief is asserted against each defendant that relates to or arises out of the same transaction or occurrence or series of transactions or occurrences; and (2) some question of law or fact common to all parties arises in the action. See Fed. R. Civ. P. 20(a)(2).

2 Unrelated claims involving different defendants belong in different suits. See Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011). Here, the multiplicity of claims against the 60 named defendants in the proposed amended complaint do not involve the same series of transactions or occurrences and do not share a common question of law or fact. See Fed. R. Civ. P. 20(a)(2).

6 Therefore, plaintiff has not satisfied the requirements of Rule 20(a) for permissive joinder of the parties in this action. As a result, leave to amend is futile because the new claims and defendants are improperly joined. See Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051, 1055 (9th Cir. 2009) (finding futility alone to be a sufficient basis for denial of leave to amend).

10 While the court denies plaintiff’s motion for leave to amend, it does so without prejudice to the filing of any separate civil action. If plaintiff chooses to initiate a separate civil action, he is advised that venue does not lie in this division and district with respect to any claims occurring at Centinela State Prison and the California Correctional Center.1 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion for leave to file an amended complaint (ECF No. 69) is denied for the 16 reasons explained herein.

17 2. Plaintiff’s motion for an extension of time to respond to defendant’s interrogatories (ECF 18 No. 72) is denied as moot.

19 3. Plaintiff’s motion for leave to serve more than 25 interrogatories (ECF No. 75) is denied.

20 4. Plaintiff’s motion for a 30 day extension of time to respond to defendant’s request for 21 production of documents (ECF No. 80) is granted.

22 5. Defendant’s motion to modify the discovery and scheduling order (ECF No. 87) is granted 23 based on lack of opposition thereto as well as good cause shown. The discovery cut-off 24 date is extended to November 2, 2021. The pretrial motions deadline is extended to 25 January 31, 2022. All other provisions of the court’s May 3, 2021 Discovery and 1 Venue is proper in the Fresno Division of the Eastern District of California with respect to claims that occurred at the California Correctional Center. Claims that occurred at Centinela State Prison are within the Southern District of California. ] Scheduling Order remain in effect.

2 6. Plaintiff's motion for a hearing and for service of interrogatories (ECF No. 88) is denied.

3 Plaintiff is cautioned that the further filing of discovery requests or responses, except as 4 required by rule of court, may result in an order of sanctions, including, but not limited to, 5 a recommendation that this action be dismissed.

6 | Dated: October 1, 2021 Card ht fa □□ he CAROLYN K.DELANEY 8 UNITED STATES MAGISTRATE JUDGE 1] | 12/surr0368.discomotions.docx