Best v. Virgil Smith ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 BRIAN BEST, Case No. 4:19-cv-02252-YGR 7 Plaintiff, ORDER (1) DENYING WITHOUT PREJUDICE MOTION TO PRODUCE; (2) DENYING 8 v. WITHOUT PREJUDICE MOTION FOR PROTECTIVE ORDER; AND (3) GRANTING IN 9 VIRGIL SMITH, PART MOTION TO AMEND OR CORRECT COMPLAINT Defendant. 10 Re: Dkt. Nos. 65, 66, 68 11 12 Pro se plaintiff Brian Best has filed three motions before the Court: (1) a motion to 13 produce certain evidence (Dkt. No. 65); (2) a motion for a protective order (Dkt. No. 66); and a 14 motion to amend or correct the complaint. (Dkt. No. 68.) For the reasons stated during the case 15 management conference held on October 26, 2020, and for the reasons stated and confirmed 16 below, the Court DENIES WITHOUT PREJUDICE these motions. 17 Motion to Produce. As discussed at the case management conference, at this stage, the 18 motion to produce is premature. The parties have only begun to engage in discovery. To the 19 extent that there are any discovery disputes, the parties should attempt in good faith to resolve 20 such disputes first, and thereafter follow the Court’s Standing Order in Civil Cases, which requires 21 the submission of a joint letter brief not to exceed four (4) pages. See Standing Order in Civil 22 Cases, Paragraph 8(B). Thus, the motion to produce is DENIED WITHOUT PREJUDICE. 23 Motion for Protective Order. As discussed at the case management conference, the Court 24 routinely enters the model stipulated protective order for standard litigation. The addition of 25 several extraneous paragraphs to the model order by Mr. Best is not warranted in this instance. 26 Accordingly, the motion for protective order is DENIED WITHOUT PREJUDICE. The parties may 27 refile the model stipulated protective order for standard litigation for the Court’s consideration. 1 management conference, the Court GRANTS IN PART the motion to amend or correct the 2 complaint. Accordingly, the Court provides Mr. Best leave to amend his operative complaint in 3 order to give him the opportunity to file a simple, concise and direct Third Amended Complaint 4 which: 5 1. States clearly and simply each claim he seeks to bring in federal court as required 6 under Rule 8, and he should: 7 a. Set forth each claim in a separate numbered paragraph; 8 b. Identify each Defendant and the specific action or actions each Defendant 9 took, or failed to take, that allegedly caused the deprivation of Plaintiff's 10 constitutional rights; and 11 c. Identify the injury resulting from each claim; 12 2. Explains how he has exhausted his administrative remedies as to each claim as against 13 each Defendant before he filed this action; 14 3. Does not make conclusory allegations linking each Defendant by listing them as 15 having “direct involvement” to his claims without specifying how each Defendant was 16 linked through their actions; 17 4. Does not name any Defendant who did not act but is linked solely in his or her 18 respondent superior capacity or against whom Plaintiff cannot allege facts that would 19 establish either supervisorial or municipal liability; and 20 5. Does not name Doe Defendants because any claims against Doe Defendants were 21 dismissed without prejudice to Mr. Best moving for leave to amend to add them as 22 named defendants once he learns their identities. 23 Within twenty-eight (28) days from the date of this Order, Mr. Best shall file his Third 24 Amended Complaint as set forth above. Because the Third Amended Complaint completely 25 replaces the original complaint, Mr. Best must include in it all the claims he wishes to present. 26 See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915 (1992). He may 27 not incorporate material from the original or prior complaints by reference. Mr. Best is further 1 may include any such claims or defendants that were only dismissed without prejudice (e.g. the 2 || Monell claim). A response from defendant(s) is due within twenty-one (21) days from the 3 || receipt of the Third Amended Complaint. 4 This Order terminates Docket Numbers 65, 66, and 68. 5 IT Is SO ORDERED. 6 Dated: November 13, 2020 7 YVONNE GONZALEZ ROGER 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 15 16 Z 18 19 20 21 22 23 24 25 26 27 28