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Rittner v. Thrower

March 8, 2007

DANIEL L. RITTNER, SR., PLAINTIFF,
v.
SIDNEY THROWER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Sargus

OPINION AND ORDER

This prisoner civil rights case is before the Court on pro se plaintiff, Daniel L. Rittner's, motion for leave to obtain over ten depositions (doc. #25), motion to order alternate service by United States Marshal (doc. #26), motion to enlarge time to file responsive pleadings and orders (doc. #27), motion to stay proceedings (doc. #28), motion for evidentiary hearing to determine tolling provisions (doc. #30), motion to sanction (doc. #41), motion for leave to file affidavit (doc. #42), motion for production of documents (doc. #43), motion to extend time to complete discovery (doc. #44), motion for leave to amend complaint and tax the costs to the Court (doc. #45), motion to appoint investigator for indigent plaintiff (doc. #50), motion to order service of subpoenas (doc. #51), motion for further orders (doc. #52), motion to order legal copies taxed to the Court and to order cost of postage to the Court taxed to the Court (doc. #60), motion to extend discovery (doc. #61), motion to order access to legal material (doc. #63), motion for appointment of counsel (doc. #68), motion to tax mileage to the Court pursuant to Rule 45(b)(1) (doc. #73), and motion to order copies on demand (doc. #74). Other motions are pending which are not addressed in this Order. For the following reasons, all of these motions will be denied.

I. Motion For Leave To Obtain Over Ten Deposition (doc. #25)

Mr. Rittner requests leave of Court because "he expects to obtain upwards of, at least, thirty (30) depositions and due to the wide variety of persons to be disposed and through out the state of Ohio and Tennessee this Court should freely grant the leave requested." (Mot. for Leave to Obtain Over Ten Depositions (reproduced verbatim).) Mr. Rittner's request for leave to take over ten depositions does not state why he will need to conduct over ten depositions or whom he intends to depose. In fact, as of the writing of this Opinion and Order, there is only one notice on the docket of one deposition to be taken, and that is the deposition of Mr. Rittner. Mr. Rittner has not indicated that he plans on obtaining deposition testimony from any witness. Further, there is no evidence, or good faith argument, that Mr. Rittner will need to conduct over ten depositions in this case. Thus, the request for leave will be denied.

II. Motion To Order Alternative Service By United States Marshal (doc. 26)/ Motion for Leave to File Affidavit Pursuant to Ohio Civ.R. 4.4 (doc. #42)

There appears to be a continual attempt by Mr. Rittner to perfect service on defendant, Sidney Thrower. It appears from the record that Mr. Rittner has not made any diligent attempt to locate Mr. Thrower. See, e.g., Vandiver v. Martin, 304 F.Supp.2d 934 (E.D. Mich.2004) (defendants' motion to dismiss was granted because pro se prisoner-plaintiff did not make good faith attempt to locate the defendants' new addresses after the defendant changed job locations). The record suggests that Mr. Rittner attempted to serve Mr. Thrower at his last known address, but Mr. Rittner immediately learned that Mr. Thrower was no longer employed there. Subsequently, Mr. Rittner moved the Court to allow service by e-mail, but that request was denied. There is no additional information, or evidence, that Mr. Rittner attempted to find the whereabouts of Mr. Thrower. For example, there is no indication, by evidence or affidavit, that Mr. Rittner specifically requested, from the defendants, Mr. Thrower's new contact information in order to perfect service. Instead, Mr. Rittner requests the Court to allow service by publication, which would alleviate any good faith attempt to locate Mr. Thrower. If the defendants have been asked for the information necessary to perfect service on Mr. Thrower but have not produced it, Mr. Rittner may file a motion to compel in order to obtain it. The current state of the record does not permit the Court to conclude that Mr. Rittner has made a good faith effort to serve Mr. Thrower, however. Accordingly, both motions will be denied.

III. Motion to Enlarge Time to File Responsive Pleadings and Orders (doc. #27)

Mr. Rittner requests a blanket order to enlarge the time to file responsive pleadings because he is indigent. Preliminarily, the Court notes that there is no fee associated with filing a response to an opposing party's motion or to respond to an Order issued by the Court. Further, under Fed.R.Civ.P. 6(b), a Court may enlarge the period for filing. However, the Court will not grant a blanket request to enlarge the time indefinitely to file a response to a motion or an Order. If Mr. Rittner wishes for additional time, he may request it on a case-by-case basis. This motion will be denied.

IV. Motion to Stay Proceedings (doc. #28)

Mr. Rittner requests that the Court stay proceedings until the Court rules on certain outstanding motions. This motion is moot because all of the motions identified therein have been ruled on.

V. Motion for Evidentiary Hearing to Determine Tolling Provisions (doc. #30)

Mr. Rittner requests an evidentiary hearing "to find that the statute of limitations should be tolled due to circumstances beyond the control of the Plaintiff and which are exceptional." (Mot. for Evidentiary Hearing to Determine Tolling Provisions at p. 1.) There is no doubt that Mr. Rittner is well-versed in the art of filing and responding to motions, so the Court concludes that Mr. Rittner can respond via brief to all issues raised regarding any statute of limitation argument. Additionally, Mr. Rittner cites no legal basis for an evidentiary hearing. The motion will be denied.

V. Motion to Sanction (doc. #41)

Mr. Rittner requests the Court to sanction the defendants for not participating in discovery. There is no evidence that the defendants are deliberately delaying the discovery process. In fact, the defendants filed a motion for leave to file memorandum in opposition instanter in order to respond to Mr. Rittner's discovery production request. This filing is construed as a good faith attempt to participate in the discovery process. If Mr. Rittner requests discovery and the defendants refuse to comply with that request, Mr. Rittner may file a motion to compel. Thus, the motion will be denied.

VI. Motion for Production of Documents (doc. #43)/ Motion to Extend Time to Complete Discovery (doc. #44)/Motion to Extend Discovery for Good Cause (doc. #61)

Mr. Rittner requested, approximately three months prior to the close of discovery, to extend the discovery deadline. At this point in the litigation, the discovery deadline has passed and discovery is closed. Thus, the motions will be denied because there is no need to extend the deadline if there is no other evidence to discover. However, if there is a particular piece of evidence or document that Mr. Rittner wishes to obtain, Mr. Rittner may request that information from the defendants. In return, if the defendants refuse to turn over the requested documentation, Mr. Rittner may file a motion to compel. Thus, the motions will be denied.

VII. Motion for Leave to Amend Complaint and Order to Tax Costs to the Court (doc. #45)

Mr. Rittner requests leave to file an amended complaint. The motion states, in relevant ...


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