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Eldridge v. JD Schroeder

United States District Court, D. Arizona

January 28, 2016

Joseph Gerald Eldridge, Plaintiff,
v.
JD Schroeder, Defendant.

REPORT AND RECOMMENDATION AND ORDER

Eileen S. Willett United States Magistrate Judge

Pending before the Court are Plaintiff’s “Motion for Permission and Court Ordered to Service by Ad in ‘USA Today’” (Doc. 54), Request of the Court (Doc. 57), and “Objection to Document 50” (Doc. 56). The Court has considered the motions and sets forth its rulings herein.

In addition, the undersigned has considered Plaintiff’s “Complaint for Negligence” (Doc. 21). For the reasons discussed in Sections II(A) and III(A) below, the undersigned recommends that the Court dismiss the “Complaint for Negligence.”[1]

I. PROCEDURAL HISTORY

Plaintiff is incarcerated at the Arizona State Prison Complex-Lewis in Buckeye, Arizona. He has filed a pro se Complaint (Doc. 21) alleging a violation of his civil rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges one count of excessive force in violation of the Eighth Amendment perpetrated against him by Defendant Schroeder. The Court screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A(a). Defendant Schroeder was required to answer.

On February 20, 2015, Plaintiff filed “Complaint for Negligence.” (Doc.21). On February 25, 2015, service was returned unexecuted as to Defendant Schroeder. (Doc. 22). Defendant Schroeder has been terminated from the employ of the Arizona Department of Corrections (“ADC”). (Id.). The Attorney General thereafter filed under seal Defendant Schroeder’s last known home address (Doc. 26). The U.S. Marshals Service (“USMS”) was unable to serve Defendant Schroeder at his last known home address. (Doc. 33). The home was vacant and had been sold as confirmed by USMS. (Id.).

The Court authorized the issuance of subpoenas duces tecum to permit Plaintiff to conduct limited discovery for purposes of serving Defendant Schroeder (Doc. 37). Plaintiff has issued subpoenas to the ADC and Governor Ducey seeking “[a]ll of J.D. Schroeder employment records. Any and all documents that has J.D. Schroeder name on the document and has anything to do with J.D. Schroeder in any way on or in the form or document or material in any form.” The Court quashed the subpoena duces tecum to the Governor. (Doc. 50 at 4). The Court again required the ADC to search personnel records and disclose to the Court under seal any document reflecting the current location of Defendant J.D. Schroeder for purposes of service of process by USMS. (Doc. 50 at 4). The Attorney General filed a “Notice of Compliance with the Court’s December 4, 2015 Order (Doc. 50)” on December 10, 2015, indicating that “[o]n December 9, 2015, the ADC Central Office and ADC Human Resources conducted another thorough search in attempt to locate any document reflecting an updated address for J.D. Schroeder.” (Doc. 53 at 1). Counsel stated that the last known address of Defendant Schroeder previously filed under seal is the only information regarding Defendant Schroeder’s location in the possession of the ADC.

USMS served a subpoena duces tecum upon the United States Postal Service (“USPS”) on December 8, 2015, requesting “any and all knowed [sic] address’s [sic] for one J.D. Schroeder and any member of the J.D. Schroeder family.” (Doc. 51). USMS also served a subpoena duces tecum upon the Federal Bureau of Investigations (“FBI”). (Doc. 49). The docket reflects that FBI Assistant General Counsel posted an email to the U.S. District Court, District of Arizona’s website, stating that a search of FBI records cannot be accomplished without a numerical identifier and “it is highly unlikely that the FBI would have any record of Mr. Schroeder’s current address. . . .” (Doc. 52).

Plaintiff now seeks permission to serve Defendant Schroeder by running “an ad in USA Today Newpaper [sic] or in the Media Networks.” (Doc. 54 at 1). Plaintiff further asks the Clerk of Court to send to the “U.S. Department of Justice FBI” Defendant Schroeder’s numerical identifier that Defendant Schroeder used at the ADC “(DOB, SS#, etc.)” in order for a “record search of NCIC” to be done. (Doc. 57 at 1). Plaintiff objects to the Court’s Order issued on December 4, 2015. (Doc. 50). Plaintiff also has filed “Complaint for Negligence” which the Court considers to be an amended complaint. (Doc. 21).

II. LEGAL STANDARDS

A. Amendment as a Matter of Course

Rule 15(a)(1), Fed. R. Civ. P., allows a party to amend a pleading once as a matter of course within twenty one days after serving it. LRCiv 15.1(b) requires a party who files an amended pleading as a matter of course to file a separate notice of the filing of the amended pleading. “The notice must attach a copy of the amended pleading that indicates in what respect it differs from the pleading which it amends, by bracketing or striking through the text that was deleted and underlining the text that was added.” Id. LRCiv 3.4 requires all complaints filed by incarcerated persons to be “signed and legibly written or typewritten on forms approved by the Court” unless the Court finds that the complaint is understandable and conforms to applicable requirements.

A district court’s local rules are not petty requirements, but have “the force of law.” Hollingsworth v. Perry, 558 U.S. 183, 191 (2010) (citation omitted). The District Court of Arizona routinely denies motions for leave to amend for failure to comply with LRCiv 15.1(a). See, e.g., Bivins v. Ryan, 2013 WL 321847, at *4 (D. Ariz. Jan. 28, 2013); J-Hanna v. Tucson Dodge Inc., 2012 WL ...


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