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Norman I. Geddis, Sr v. David Ford

November 30, 2011

NORMAN I. GEDDIS, SR., PLAINTIFF,
v.
DAVID FORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #7. Currently before the Court are plaintiff's motion to amend the complaint (Dkt. #16) and plaintiff's motion seeking the appointment of counsel (Dkt. #20). For the following reasons, plaintiff's motion to amend the complaint (Dkt. #16) is granted and plaintiff's motion seeking the appointment of counsel (Dkt. #20) is denied.

BACKGROUND

Plaintiff commenced this action on or about December 13, 2010 against David Ford and Gregory Osterstuck for failure to protect in violation of the Eighth Amendment. Dkt. #1. Specifically, plaintiff alleges that on December 29, 2007 at 8:44 a.m., defendant David Ford placed six inmates, including plaintiff, in the second floor corridor for a doctor callout and that shortly thereafter, defendant Ford became distracted and one of the inmates approached plaintiff in a threatening manner. Id. Plaintiff further alleges that had defendant Ford not become distracted and had he protected plaintiff, an assault that took place approximately five minutes later could have been prevented. Id. In his second claim, plaintiff alleges that defendant Osterstuck failed to maintain his attention on the six inmates in the corridor and in that time, inmate Hall assaulted plaintiff. Id. Defendants Ford and Osterstuck filed their Answer to plaintiff's Complaint on February 8, 2011. Dkt. #6. This Court issued a Case Management Order on March 14, 2011.*fn1 Dkt. #11. Thereafter on May 13, 2011, defendants served and filed a Notice to Take Deposition of Norman Geddis (Dkt. #12), Interrogatories (Dkt. #13) and a Request for the Production of Documents (Dkt. #14).

In addition, also on May 13, 2011, defendants served and filed their Rule 26 Disclosure (Dkt. #15).

Motion to Amend the Complaint

On June 2, 2011, plaintiff timely filed the instant motion seeking to amend the complaint. Dkt. #16. More specifically, plaintiff seeks to add three additional defendants and one John Doe defendant, as well as two causes of action, one for failure to administer adequate medical treatment and the second, entitled "Unsafe Environment." Id. In support of his motion, plaintiff asserts that he "should be entitled to change my original complaint because I didn't have all the information of [sic] people that I want to sue. And I know that these are the people that are responsible for any [sic] actions I have suffered." Dkt. #16, p.3. Counsel for the defendants filed an affidavit in opposition to plaintiff's motion to amend the complaint. Dkt. #18. In their opposition, defendants argue that the additional defendants plaintiff seeks to add to his complaint include, [the] Sheriff, Warden, and Nurse. These individuals were easily identifiable at the time the original complaint was filed. The plaintiff does not provide any explanation as to why he did not merely name the individuals as "John/Jane Doe" as he has proposed in the amended complaint. Moreover, there is no reason set forth as to why he did not assert the proposed new causes of action in the original complaint.

Dkt. #18, ¶ 5. In addition to the foregoing, defendants maintain that plaintiff"s motion to amend the complaint should be denied because such an amendment would be futile in that plaintiff's proposed new claims are time barred.

Motion for Appointment of Counsel

On or about October 24, 2011, plaintiff filed the instant motion seeking the appointment of counsel. Dkt. #20. In support of that motion, plaintiff relies on the assistance he feels an attorney can provide him in securing the discovery materials he needs to support his claims. Id. In addition, plaintiff asserts that he is limited to 88ó worth of free legal mail a week and therefore, he is restricted in his ability to file legal documents on a timely basis. Finally, plaintiff states, "I assure you that I have attempted to contact several attorneys, either by mail or by phone, and I have attempted to have contact by [sic] the use of the online web sites, all within a two (2) year period." Id. Although defendants insist that they do not wish to take a position with respect to plaintiff's motion for counsel, defendants did submit a response to the motion. Dkt. #19. In their response, defendants state, in part:

[w]hile defendants do not take a position on plaintiff's motion, your deponent wanted to point out to the Court that much of what the plaintiff is seeking in terms of discovery has already been turned over to the plaintiff in the normal course of discovery disclosures. We have provided the plaintiff with a copy of the video camera footage from the jail and the jail records regarding the incident. With respect to his medical records, we have asked him to provide us with a signed authorization and request for the records and they will be provided to him. With respect to depositions and discovery, although defendants noticed for [sic] the deposition of the plaintiff, it did not proceed because he failed [sic] a motion to amend his complaint which would affect depositions and we are awaiting a decision in that motion. Plaintiff has never served any discovery, nor has he requested [sic] deposition of any of the defendants or their representatives.

Dkt. #19, ¶¶ 3-4.

DISCUSSION AND ANALYSIS Motion to Amend the Complaint

The Federal Rules of Civil Procedure require the Court to issue a scheduling order which, inter alia, limits the time to join other parties and amend the pleadings. Fed.R.Civ.P. 16(b)(3)(A). "By limiting the time for amendments, the rule is designed to offer a measure of certainty in pre-trial proceedings, ensuring that at some point both the parties and the pleadings will be fixed." Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000) (internal quotation omitted). As a threshold ...


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