United States District Court, S.D. Ohio, Western Division
JEREMY P. GALLANT, Plaintiff,
MR. HOLDREN, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
an inmate at the Southern Ohio Correctional Facility (SOCF),
brings this pro se action under 42 U.S.C. § 1983
alleging violations of his civil rights. (Doc. 3). This
matter is before the Court on plaintiffs motions (1) to
"Stay Civil Proceedings Pending Submission of Amended
Pleadings" (Doc. 49), (2) for "Leave to
Supplement/Amend-Request to Add Relating Assertions-Fed. R.
Civ. P. Rule 15 Amended Pleadings" (Doc. 50), and (3)
for a Court Order to defendants to preserve and produce video
recordings (Doc. 53). Defendants have a filed a memorandum in
response to plaintiffs motions. (Doc. 54).
Motion to amend/supplement the complaint (Doc. 50)
moves to supplement the original complaint to add allegations
related to incidents that occurred after the event alleged in
the original complaint. (Doc. 50).
of a complaint is governed by Fed.R.Civ.P. 15, which states
On motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading
setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.
The court may permit supplementation even though the original
pleading is defective in stating a claim or defense.
Fed. R. Civ. P. 15(d). Whether to grant or deny a request to
supplement a pleading is left to the sound discretion of the
trial court. Burse v. Robinson, No. 2:14-cv-403,
2015 WL 2337781, *2 (S.D. Ohio May 13, 2015) (King, M.J.)
(citations omitted). In exercising its discretion under Rule
15(d), the Court considers ''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, [and] futility of the
amendment." Id. (citing Foman v.
Davis, 371 U.S. 178, 182 (1962); Spies v.
Voinovich, 48 Fed.Appx. 520, 527 (6th Cir. 2002) (same
standard of review and rationale apply to motions filed under
Fed.R.Civ.P. 15(a) and 15(d)). A proposed amendment is futile
if it could not withstand a Rule 12(b)(6) motion to dismiss.
Rose v. Hartford Underwriters Ins. Co., 203 F.3d
417, 420 (6th Cir. 2000).
supplements to a prisoner's complaint must be sua
sponte reviewed under 28 U.S.C. §§ 1915 and
1915A. Courts have generally held that "[u]nrelated
claims against different defendants belong in different
suits, not only to prevent the sort of morass [a multiple
claim, multiple defendant] suit produce[s], but also to
ensure that prisoners pay the required filing fees -for the
Prison Litigation Reform Act limits to 3 the number of
frivolous suits or appeals that any prisoner may file without
prepayment of the required fees." George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citing 28
U.S.C. § 1915(g)). See also Hetep v. Warren, 27
Fed.Appx. 308, 309 (6th Cir. 2001) (citation omitted)
(proposed amendment adding new unrelated claims against new
defendants not allowed).
states that he seeks to supplement the complaint to add
allegations that directly relate to his original assertions.
(Doc. 50). Plaintiff generally alleges in his motion that he
has been subjected to a "campaign of departmental
reprisals" in retaliation for filing the original
complaint. (Id. at 2). However, plaintiff does not
make any specific factual allegations regarding the alleged
reprisals. (Id., ). Plaintiff has submitted a
declaration alleging that unnamed "state employees"
subjected him to a "savage and merciless beating"
that led to him "being life flighted on life support,
" but plaintiffs declaration includes no factual
allegations to show that the alleged beating is related to
the incident alleged in the original complaint. (Doc. 51).
Any unrelated claims are properly addressed in a separately
filed new civil rights complaint and not in a supplemental
complaint filed in this action. See George, 507 F.3d
at 607; Hetep, 27 F, App'x at 309. Accordingly,
plaintiffs motion to supplement his complaint to add claims
or allegations related to events that occurred subsequent to
the incident set forth in the original complaint should be
Motion for order to preserve and produce video evidence (Doc.
moves the Court for an Order under the discovery rules
requiring defendants to preserve and produce camera footage
of Unit J-4 at SOCF dated February 13, 2016. (Doc. 53).
Motions to compel discovery "must include a
certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without
court action." Fed.R.Civ.P. 37(a)(1). Further, S.D. Ohio
Civ. R. 37.1 requires that motions to compel "shall not
be filed in this Court. .. unless counsel have first
exhausted among themselves all extrajudicial means for
resolving the differences." S.D. Ohio Civ. R. 37.1. An
individual is not excused from adhering to the requirements
of the Federal Rules of Civil Procedure or the Local Rules
for this District simply because he is proceeding pro se.
See McNeil v. U.S., 508 U.S. 106, 113 (1993) (noting
that pro se litigants may receive some leniency with regard
to procedural rules, particularly where a procedural error
could be fatal or where the litigant is incarcerated, but
emphasizing that "we have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
motion does not include the necessary certification that he
conferred or attempted to confer with defendants' counsel
prior to filing his motion to compel discovery with the
Court. Nor does plaintiff assert in his motion that he has
made extrajudicial efforts to resolve the discovery issue.
Had plaintiff conferred with defendants' counsel he
likely would have been able to resolve this matter without
filing a motion. Defendants state in their response to
plaintiffs motion that the camera footage plaintiff seeks has
been preserved and is available for plaintiffs review under