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PANGBURN v. CULBERTSON

November 7, 1997

MARK B. PANGBURN, Plaintiff,
v.
JAMES CULBERTSON, Court Clerk; JOHN M. YORK, Sheriff; and SHERIFF'S PROPERTY CLERK, Defendants.



The opinion of the court was delivered by: HECKMAN

 The above case was referred to the undersigned by the Hon. John T. Elfvin to supervise discovery and render decisions on all discovery and other nondispositive motions pursuant to 28 U.S.C. § 636(b)(1)(A). Currently pending for decision are plaintiff's motion for leave to amend his complaint (Item 24), motion to compel discovery (Item 26), and motion for leave to take depositions by other than stenographic means (Item 31). For the reasons that follow, plaintiff's motions are denied.

 Plaintiff initiated this action on June 5, 1996, asserting numerous claims under the United States Constitution and several federal and state statutes. In sum, plaintiff claims that he suffered harm on June 5, 1993 and thereafter, when, upon plaintiff's arrest, defendants allegedly seized as evidence the automobile he was driving which belonged to his wife, and then retained the vehicle for two years during which time defendants employed it for their personal use.

 A scheduling conference in this case was originally set for May 19, 1997. That conference was adjourned when Judge Elfvin scheduled a hearing on plaintiff's motion for summary judgment.

 On May 22, 1997, plaintiff's motion for summary judgment was denied, as was his motion for appointment of counsel. Judge Elfvin also dismissed, sua sponte, plaintiff's claims under the Freedom of Information Act and the Privacy Act of 1974. Upon dismissal of those claims, Judge Elfvin recommended that plaintiff move for leave to amend his complaint to conform with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, *fn1" and to identify by name the third defendant in this action, the Sheriff's Property Clerk.

 On June 10, 1997, plaintiff filed a motion for leave to amend his complaint. In his proposed amended complaint, plaintiff deleted his claims under FOIA and the Privacy Act. Plaintiff is now seeking relief pursuant to 42 U.S.C. § 1983 for alleged violations of his rights as guaranteed by the Fourth, Fifth, Eleventh and Fourteenth Amendments to the United States Constitution. Plaintiff also advances state law claims for intentional infliction of emotional distress and negligence.

 In addition to modifying the jurisdictional basis for his claims, plaintiff seeks to add his wife, Kathleen M. Pangburn, as a plaintiff and to add the County of Livingston and the State of New York as defendants.

 On August 29, 1997, defendants objected to the proposed amendments on the grounds that (1) Judge Elfvin's recommended revisions did not include the addition of new parties, (2) plaintiff's proposed amended complaint, which is several pages longer than the original nine page complaint, does not improve on the original with regard to the short and plain statement requirement of Rule 8(a)(2), (3) there is no indication by way of an affidavit or otherwise that Kathleen M. Pangburn wishes to participate as a plaintiff n this action, (4) it does not appear that any notice has been given to the two additional defendants named, (5) plaintiff's attempts to assert a claim under 42 U.S.C. § 1983 against a governmental body would be futile, and (6) the third defendant, Sheriff's Property Clerk, is not named as was recommended by Judge Elfvin (Item 30).

 On September 10, 1997, plaintiff submitted a reply affidavit in which he corrects the caption of his proposed amended complaint to name the third defendant as Sgt. Jeffrey L. McDonald (Item 32, P 5). In addition, plaintiff claims that an affidavit from Kathleen Pangburn is forthcoming (P 10). This has not been received by the court to date.

 DISCUSSION

 I. MOTION TO AMEND.

 As stated above, defendants advance numerous objections to plaintiff's proposed amended complaint. I will not address those objections, however, as there is a more fundamental reason for denying plaintiff's motion -- that is, the proposed amendments are futile. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) (appropriate reasons for denying motion to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.").


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