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Dyess v. Mullins

United States District Court, S.D. Ohio, Western Division

September 1, 2017

SIR MICHAEL DYESS, Plaintiff,
v.
NEIL MULLINS, et al., Defendants.

          Dlott, J.

          MEMORANDUM OPINION AND ORDER

          Stephanie K. Bowman, United States Magistrate Judge

         Pursuant to local practice, this prisoner civil rights case has been referred to the undersigned magistrate judge for pretrial management, and for initial review and a Report and Recommendation on any dispositive motions. Currently pending are four related motions by Plaintiff to amend his complaint and/or to compel discovery. Plaintiff has also filed a motion to extend the deadline for filing dispositive motions. For the reasons that follow, Plaintiff's motions to further amend and to compel discovery will be denied, but the motion to extend time for filing dispositive motions will be granted.

         I. Procedural and Factual Background

         On October 25, 2016, the undersigned entered an Order that granted Plaintiff's motion to proceed in forma pauperis with a civil rights complaint against three identified Defendants (Neil Mullins, Correctional Officer Gifford, and Nurse Joiner), plus two John Doe Defendants that Plaintiff did not initially identify. (Docs. 10, 12). The Court also entered a calendar order that directed the parties to complete discovery by June 30, 2017, with dispositive motions to be filed by August 31, 2017. (Doc. 17).

         Plaintiff's original complaint alleged that he was assaulted by other inmates “with human bodily fluids projected out of clear shampoo bottles, and nasal spray bottles” on July 23, 2016, as Plaintiff walked down a corridor to use a telephone. (Doc. 11 at 7). Plaintiff further alleges that when he finished his phone call, he was “tricked” by another inmate into stopping in front of another inmate's cell, whereupon that unknown inmate accosted him by trying to punch him or slap him, and spit into Plaintiff's face “as C/O Mullins and C/O Gifford stood and watched at the front of K2 South 41 through 60 range.” Plaintiff alleges that other inmates continued to project bodily fluids towards him as he walked down the corridor.

         Plaintiff alleges that although he requested permission to shower off, C/O Gifford approached and told him to get into his cell, implicitly denying Plaintiff's request while stating: “You little bitch get into your cell now or I'll do more to you than these inmates!” (Doc. 11 at 5). Plaintiff alleges that when he instead began to walk toward the shower, C/O Mullins appeared and began to spray his facial area with O/C (pepper) spray, while calling him a “fucking stupid ass nigger.” Plaintiff alleges that he held his arms out, closing his eyes, and felt the two correctional officers slam him into the steel siding along the threshold of his cell doorway. He alleges the officers sprayed him a second time with O/C spray and threw him into his cell.

         Five minutes later, two John Doe Defendants (subsequently identified as Lt. Setty and C/O Bauer) arrived at his cell and escorted him to the infirmary, where they allegedly proceeded to punch him in the face and body for 2-3 minutes. (Doc. 11 at 5). Plaintiff asserts that Setty and Bauer told him to stop filing informal complaints on unspecified officers. He alleges that Nurse Joiner witnessed the attack by Setty and Bauer, took pictures, and stitched his head up from his earlier injury. (Id.). He alleges that Defendant Joiner, as well as Defendants Setty and Bauer, were deliberately indifferent to his serious medical needs because they did not allow him to decontaminate himself or to shower off the pepper spray. (Doc. 11 at 6). Plaintiff alleges that he fully exhausted his administrative remedies concerning the events of July 23, 2016, [1] and attached several grievance forms to his complaint.

         On January 10, 2017, the undersigned denied Plaintiff's motion seeking the appointment of counsel, denied a second motion by Plaintiff seeking the Court's assistance, and denied in part a third motion that sought discovery from the Defendants. On March 10, 2017, the undersigned denied a second motion to appoint counsel, but granted Plaintiff's motion to amend his complaint to issue service to two newly identified Defendants Lt. Setty and Correctional Officer Bauer. The same order denied two additional motions filed by Plaintiff as procedurally improper. (Doc. 27).

         On March 24, 2017, Plaintiff filed a motion seeking to add several entirely new claims and three new Defendants to this case. (Doc. 29). On the same date, he filed a motion seeking to compel additional written discovery responses from the existing Defendants. (Doc. 30). Defendants filed responses in opposition to both motions. (Docs. 33, 34). On August 14, 2017, Plaintiff filed a new motion to amend/correct his complaint as well as a new motion seeking a ruling on his previously filed motion to compel. (Docs. 36, 37).

         II. Pending Motions

         A. Plaintiff's Motions to File an Amended Complaint (Docs. 29, 36)

         Two motions seek this Court's permission to file an amended complaint to include new “retaliation” claims and newly identified Defendants (Correctional Officers Tackett and Robertson, and Nurse Rider), based upon a new incident alleged to have occurred on January 30, 2017. According to Plaintiff, the two officers conducted a cell search on that date, and both physically and verbally assaulted him, stating specifically that they were doing so in retaliation for his prior complaint against “Gifford and Mullins, ” two of the Defendants on which Plaintiff's original complaint is based.[2] Plaintiff complains that after the assault, Nurse Rider was deliberately indifferent to his injuries and failed to permit him to decontaminate himself.[3]

         The Defendants oppose the tendered amended complaint both on procedural grounds and on the merits, arguing that the tendered amendment would not withstand a motion to dismiss. Defendants complain that by adding new claims against newly proposed Defendants for an entirely separate incident, Plaintiff is attempting to file a “buckshot” complaint that avoids the procedural safeguards of the Prison Litigation Reform Act (“PLRA”), which safeguards otherwise discourage frivolous lawsuits. See, ...


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