Opinion
Case No. 2:06-cv-0471.
November 14, 2006
OPINION AND ORDER
This prisoner civil rights case is before the Court on pro se plaintiff, Daniel L. Rittner's, motion for leave to file reduced copies, motion for discovery, motion for order to allow plaintiff to supplement or amend complaint when funds become available, motion to enlarge time in all pleadings, motion to find e-mail sufficient for service, motion to order discovery conference, motion to order plaintiff to receive file-stamped copies of all pleadings, motion to appoint officer to take depositions, motion to attach and seizure of property, motion to amend summons and to serve by publication, and motion to order alternative service by United States Marshal. Further, before the Court is defendant Jeffrey Wolfe's motion to strike plaintiff's response to defendant's answer. For the following reasons, all of Mr. Rittner's motions will be denied. Mr. Wolfe's motion will be granted.
Motion for Leave to File Reduced Copies (doc. #5)
Unless otherwise noted, all motions were filed by Mr. Rittner.
In this motion, Mr. Rittner requests leave to file a reduced number of copies of the pleadings in this case. The Federal Rules of Civil Procedure, in conjunction with the Court's local rules, do not require a requisite number of copies of the pleadings to be filed. In this pro se prisoner civil rights case, only one copy of a pleading is required to be sent to the Clerk's office so that the pleading can be posted on the electronic docket.
Motion for Discovery (doc. #6)/ Motion to Order Discovery Conference (doc. #21)
Mr. Rittner requests the Court to order Mr. Thrower's counsel to provide addresses so that Mr. Rittner can effectuate service under Fed.R.Civ.P. 4. It appears that discovery in this case is open, and Mr. Rittner may seek discovery from the defendants in this case by sending the defendants a request for discovery. Given the particular request in the motion for discovery, Mr. Rittner may send the defendants a discovery request to obtain all necessary and requisite addresses relevant to this case. If defendants fail to respond to this request, then Mr. Rittner may move to compel discovery.
Further, because Mr. Rittner is a plaintiff without counsel and a person in custody of the United States, a state, or a state subdivision, the Court will not grant Mr. Rittner's request for a discovery conference. Fed.R.Civ.P. 26(a)(1)(E)(iii) and 26(f). If Mr. Rittner requests discovery, and if the defendants do not comply with that request, and extrajudicial means of obtaining the requested discovery are exhausted, then the Court will, upon a party's motion, consider a request for a discovery conference. However, because the current motion is solely a request for a general discovery conference pursuant to Rule 26(f) and not a request for a discovery conference to obtain specific discovery allegedly being withheld from Mr. Rittner, this motion is denied.
Motion to Enlarge Time in All Pleadings (doc. #8)
Mr. Rittner requests the Court to grant a general extension of time for all pleadings. Motions for an extension of time to file motions or pleadings will be evaluated and determined on a case-bycase basis. If Mr. Rittner requests an extension of time to file a motion or respond to a particular motion or Order, then Mr. Rittner may file a motion for an extension of time. The Court will not grant general motions for an extension of time.
Motion to Find E Mail Sufficient for Service (doc. #9)/ Motion to Amend Summons and To Serve By Publication (doc. #24)
Mr. Rittner requests the Court to allow Mr. Rittner to use Mr. Thrower's personal e-mail account for service of process in this case. Using an e-mail to perfect service of process, in this situation, is insufficient under the Federal Rules of Civil Procedure. Fed.R.Civ.P. 4 and 5.
Further, Mr. Rittner requests that the Court allow him to serve Mr. Thrower by publication under the Ohio Rules of Civil Procedure 4.4. See Fed.R.Civ.P. 4(e)(1). According to Ohio Rule 4.4, however, a party requesting service by publication must file an affidavit with the Court indicating "that service of summons cannot be made because the residence of the defendant is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the defendant, and that the residence of the defendant cannot be ascertained with reasonable diligence." Ohio Civ.R. 4.4(a). In the instant case, no affidavit has been filed with the Court indicating the requisite information.
Motion for Order to Allow Plaintiff to Supplement or Amend Complaint when Funds Become Available (doc. #7)
Fed.R.Civ.P. 15 describes the process of how a party may amend or supplement a pleading. That Rule states, in relevant part, that:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action had not been placed upon the trial calender, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
Fed.R.Civ.P. 15(a). As indicated by the Rule, there is no requirement to pay additional filing fees to amend a pleading. Thus, there is no need to wait for funds to become available.
Motion to Order Plaintiff to Receive File Stamped Copies of All Pleadings (doc. #10)
In this motion, Mr. Rittner requests that the Court order that he receive file-stamped copies of all pleadings so that he is always informed of the filings. Under the list of required documents to be served in Rule 5, time-stamped copies of all pleadings is not one of them. Rule 5 requires only that those items and documents listed in the rule be served upon each party; it does not require that the documents be file-stamped prior to their service.
Motion to Appoint Officer to Take Deposition (doc. #23)
Mr. Rittner requests the Court to appoint an officer to take a deposition pursuant to Federal Rule of Civil Procedure 28. Rule 28 indicates that when a deposition is taken, the deposition "shall be taken before an officer authorized to administer oaths by the laws of the United States. . . ." Fed.R.Civ.P. 28(a). According to the docket, there have been no depositions scheduled or taken in this case, so Rule 28 is not an issue. In any event, the Court does not appoint the officer; rather, the parties make their own arrangements to conduct a deposition before a person who can administer oaths.
Motion to Attach and Seizure of Property (doc. #22)
In this motion, Mr. Rittner requests the Court to attach and seize Mr. Thrower's property because, according to Mr. Rittner, Mr. Thrower "does not want to be found." (Motion to Attach and Seizure of Property (doc. #22) at p. 1.) The motion requests the Court "to attach and or seize the wages, income, payment of benefits and entitlements of Sidney Throwers derived from his employment with the Ohio Department of Rehabilitation and Correction until such time Thrower mades his wereabouts to the Plaintiff." Id. (reproduced verbatim).
As indicated in Mr. Wolfe's answer, Mr. Thrower is no longer employed at the Noble Correctional Institution. In fact, according to Mr. Wolfe, Mr. Thrower has not worked there since "early 2005." (Answer at p. 1 fn. 1.) Because of this, it appears that Mr. Rittner is having difficulty serving Mr. Thrower in this case.
Preliminarily, this Court concludes that there is no Federal Rule of Civil Procedure or statutory rule that grants the Court authority to seize Mr. Thrower's property. Despite Mr. Rittner's difficulty in serving Mr. Thrower, there appears to be no evidence or indication that Mr. Thrower is purposefully evading service. As indicated, supra, through the discovery process, Mr. Rittner may request discovery from Mr. Wolfe, a defendant who appears to be properly served in this action. In that discovery request, Mr. Rittner may request Mr. Thrower's address or last known address so that Mr. Rittner may attempt to perfect service on Mr. Thrower. If those efforts fail, then Mr. Rittner may request a discovery conference to discuss the dispute, or he may file a motion to compel discovery.
Defendant Wolfe's Motion to Strike Plaintiff's Response to Defendant's Answer (doc. #19)
In this motion, Mr. Wolfe requests that the Court strike Mr. Rittner's response to Mr. Wolfe's answer. On August 17, 2006, Mr. Rittner responded to Mr. Wolfe's answer claiming that the defendants were not protected by qualified immunity. Further, Mr. Rittner attempts to argue the merits of the case against a Rule 12(b)(6) motion.
As Mr. Wolfe noted in his motion, Rule 7 provides for what pleadings are permissible in a civil case. After reviewing Mr. Rittner's response to Mr. Wolfe's answer, it does not appear that the response is a pleading as described in Rule 7. Further, it does not appear to be a motion. Accordingly, the response to Mr. Wolfe's answer must be striken from the record.
In sum, Mr. Rittner's Motion for Leave to File Reduced Copies (doc. #5), Motion for Discovery (doc. #6), Motion to Order Discovery Conference (doc. #21), Motion to Enlarge Time in All Pleadings (doc. #8), Motion to Find E Mail Sufficient for Service (doc. #9), Motion to Amend Summons and To Serve By Publication (doc. #24), Motion for Order to Allow Plaintiff to Supplement or Amend Complaint when Funds Become Available (doc. #7), Motion to Order Plaintiff to Receive File Stamped Copies of All Pleadings (doc. #10), Motion to Appoint Officer to Take Deposition (doc. #23), and Motion to Attach and Seizure of Property (doc. #22) are DENIED. Further, Mr. Wolfe's Motion to Strike (doc. #19) is GRANTED. Accordingly, doc. #17 is striken from the record.