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RICHARD SEAVER, HAROLD LEE OLIVER, LARRY BRAND, FITZPATRICKPERRY, DAVID
MERCIER, PAUL SHEEHAN, MICHAEL BRACE, Plaintiffs v. OFFICERMANDUCO, OFFICER
JONES, OFFICER LEBLANC, OFFICER RABBIT, OFFICER VACHON, OFFICER ANDRADE,
OFFICER RICE, OFFICER JOHN DOE, OFFICER JOHN DOE # 2, OFFICER JOHN DOE# 3,
OFFICER RICHARD CURTIS, LYNN BISSONNETTE, DEPARTMENT OF CORRECTIONS, Defendants
CIVIL ACTION NO. 00-10906-REK
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
January 4, 2002, Decided
Opinion and Order
January 4, 2002
KEETON, District Judge.
I.
Pending Motions
(1)
Plaintiffs Oliver, Seaver, Perry and Mercier's Motion to Compel (Docket No. 43,
refiled in Docket No. 48 on November 26, 2001);
[*32] (2) Plaintiffs Oliver and Seaver's Motion to Supplement Complaint
(Docket No. 40, filed July 5, 2001); Defendants have filed a Memorandum in
Opposition (Docket No. 41, filed August 6, 2001); Plaintiffs Seaver and Oliver
(signed by Seaver only) filed a Reply (Docket No. 42) that was refiled as part
of Docket No. 48 on November 26, 2001 and signed by Plaintiffs Seaver, Oliver,
Perry and Mercier;
(3)
Defendants' Motion to Dismiss or in the Alternative, for Summary Judgment
(Docket No. 25 filed April 9, 2001); Plaintiffs Seaver, Oliver, Sheehan, Harris
and Mercier filed a Memorandum in Opposition (Docket No. 29) that was refiled
as part of Docket No. 48 on November 26, 2001 and signed by Plaintiffs
Seaver, Oliver, Harris and Mercier; and
(4)
Motion by Plaintiffs Seaver, Oliver, Harris and Mercier to Amend Complaint
(Docket No. 47, filed November 26, 2001); Defendants have filed a Memorandum in
Opposition (Docket No. 49, filed December 12, 2001).
(5)
Motion by Plaintiffs Seaver, Oliver, Mercier and Perry to Strike Defendants'
Opposition (To Amend) or, in the Alternative, Plaintiffs' Reply (Docket No. 50,
filed December 20, 2001). This filing has also been signed by Deshawn Teixera
and Henry Houghton.
II.
Procedural Background
On
March 1, 2000, plaintiffs Seaver, Oliver, Brand, Perry, Mercier, Sheehan and
Brace, appearing pro se, filed a Complaint in this court requesting $25,000 in
damages along with injunctive and declaratory relief under 42 U.S.C. § 1983.
On
February 13, 2001, defendants, represented by counsel, filed a Motion to Stay
Discovery (Docket No. 23) pending resolution of a planned dispositive motion.
The court denied this motion without prejudice on March 13, 2001.
On
April 9, 2001, defendants filed a Motion to Dismiss, or in the Alternative, for
Summary Judgement (Docket No. 25). On the same date, defendants field a
Memorandum of Law (Docket No. 26) in support of this Motion. The Memorandum of
Law included a Statement of Undisputed Material Facts Pursuant to Local Rule
56.1 (Docket No. 26, p. 2). Attached to the Memorandum of Law as Exhibit A is
an Affidavit of Jean Laprise that was also filed on April 9, 2001. Plaintiffs
Seaver, Sheehan, and Mercier filed a Motion for Enlargement of Time (Docket No.
27, filed April 17, 2001) in order to prepare an Opposition. Plaintiffs Seaver,
Sheehan, Perry, Oliver, and Mercier then filed an Opposition to Plaintiff's
Motion (Docket No. 29) along with nine Affidavits (Docket Nos. 30-38) on May
22, 2001.
On
July 6, 2001, plaintiffs Oliver and Seaver filed a Motion to Supplement
Complaint (Docket No. 40). Defendants have filed an Opposition to Plaintiffs'
Motion to Supplement Complaint (Docket No. 41 filed August 6, 2001) and
plaintiff Seaver subsequently filed a Reply to Defendants' Opposition to
Supplement Complaint (Docket No. 42).
On
September 6, 2001, plaintiffs Oliver and Seaver filed a Motion to Compel
(Docket No. 43) which attached a copy of plaintiffs Seaver and Brand's Request
for Production of Documents. Defendants have filed a Motion to Extend Time to
11/30/01 to Respond to Request for Production of Documents (Docket No. 44). The
court ALLOWED Docket No. 44 by order written on the margin.
The
court issued a Procedural Order on November 9, 2001 that stated that "[a]
pro se litigant cannot represent anyone other than himself. Each individual
plaintiff must sign a filing if it is to be a submission of that individual
plaintiff." Plaintiffs had [*33] been making filings that were not signed
by all of the plaintiffs. See, e.g., Docket No. 43. The court ordered that
plaintiffs resubmit certain filings (Docket Nos. 29, 40, 42 and 43) with the
signatures of each plaintiff who desires that filing to be a filing in his
name. On November 28, 2001, plaintiffs Seaver, Oliver, Perry, and Mercier filed
a response (Docket No. 48) to the Procedural Order. The response was also signed by Henry Houghton and Deshawn
Teixerea, individuals who had not signed any previous document in this case.
Included in Docket No. 48 are the following documents:
1) Opposition to Defendants' Motion to
Dismiss, or in the Alternative, for Summary Judgment, signed by Seaver, Oliver,
and Perry;
2) Reply to Defendants' Opposition to
Supplement Complaint, signed by Seaver Oliver, and Perry;
3) Motion to Compel, signed by Oliver,
Seaver, Perry and Mercier, with attached Request for Production of Documents
signed by Seaver and Brand;
4) Motion to Supplement Complaint, signed by
Oliver, Seaver, Perrier and Mercier.
Attached to Docket No. 48 was a Motion to Amend Complaint (Docket No.
47) signed by Houghton and Seaver. The attached Amended Complaint was signed by
Seaver, Houghton, Oliver, Perry, Mercier and Teixera.
The
court has neither previously added Houghton or Teixera nor removed Brand, Brace
or Sheehan as plaintiffs from this case. The court will not permit the addition
of Houghton and Teixera as the court is denying the Motion to Amend Complaint
in the Order below. The Motion to Amend was the basis for the addition of
Houghton and Teixera and thus because of the denial they will not be added. The
court will not remove Brand, Brace, or Sheehan, since no request to do so has
been filed.
III. Factual Background
Plaintiffs, except for Larry
Brand (see Docket No. 24), are inmates at the North Central Correctional
Institution in Gardner, Massachusetts (NCCI-Gardner). Defendant Department of
Corrections is an agency of the Commonwealth of Massachusetts. All of the
individual defendants are corrections officers at NCCI-Gardner except for Lynn
Bissonnette, who is the Superintendent of NCCI Gardner. The individual defendants
are being sued in both their official and individual capacities.
Plaintiffs filed the Complaint on March 1,
2000. Plaintiffs make numerous allegations against defendants within the
Complaint. These allegations are subsequently divided by plaintiffs into two
causes of action. The first cause of action involves alleged discrimination by
the defendants as to the plaintiffs' status as sex offenders within the prison.
Plaintiffs allege in the Complaint:
22. On
December 4, 1999, Defendants Rabbit, Vachon, and LeBlanc put a sign up in the
office window which stated "All sex offenders should be castrated
..."
23. On
December 5, 1999, Officers John Doe and John Doe # 2 put the same sign up on
the third floor of Thompson Hall Officer[s'] Bubble.
24. As
a result of the sign which was put up in the windows of the officers' bubble,
plaintiffs were subject to assault by other prisoners because of the nature of
their crimes.
39.
Officer Rabbit accused Plaintiff Brace of being a "homo."
[*34]
40. Officer Rabbit told Plaintiff Brace "if you want to suck dick, do it
in the library."
Complaint at 5-6.
Plaintiffs make additional
claims of harassment that, although not of an explicitly sexual nature, were
allegedly committed against them by prison officials because of plaintiffs'
status as sex offenders. See Complaint at 6-8. Plaintiffs also allege that
plaintiff Brace complained to Lieutenant Germaine about the claims of
harassment, with no actions taken by Lieutenant Germaine to remedy the situation.
Plaintiffs allege that the harassment occurred from November 7, 1999 through
January 27, 2000.
The second cause of action
involves a visual cavity search that occurred on February 18, 2000 within
NCCI-Gardner. Plaintiffs allege:
48. On
February 18, 2000 the workers were called to the inmate canteen to pick up
their orders.
49.
While [they were] standing in line unsupervised, during a snowstorm, the
officer in the tower, Corrine, hit the alarm button causing a 10-33.
50.
There were around 40 inmates standing in line waiting to enter the canteen,
which is an underground enclosure containing 4 rooms and a bathroom.
51.
The defendants came to the point of the inmates' line in response to the 10-33
and asked the inmates "Where's the fight?"
52.
Some inmates responded by stating there had been no fight.
53.
After 5-6 minutes of cursory inspection, the tower guard leaned out the window
and stated "I guess I was mistaken, call off the 10-33."
54.
Upon hearing this, many of the inmates laughed.
55.
The defendants ordered the inmates into one of the canteen rooms which measures
20 x 26 feet and conducted a visual cavity search of more than 60 inmates.
56.
This visual cavity search was ordered by defendant Manduco as retaliation for
the inmates' laughing at the tower guard's statement that the 10-33 was a
mistake.
57. Defendant LeBlanc was present for the
violation and should have ordered the officers to disperse rather than conduct
a retaliatory body cavity search as she was the senior officer.
58. The civilian canteen workers were able to
view the visual body cavity search from the fact that all doors were open from
across the hall.
59.
Officer Jones failed to secure the canteen cross-hall door which would have
obstructed the civilians' view of the visual body cavity searches.
60. The defendants conducted a visual body
cavity search with more than 60 inmates where there was no privacy for anyone
who was subjected to the search.
. .
. .
63. The defendants forced the 60 inmates to
take off all their clothes, throw them on the floor, bend over and spread their
buttocks, lift their testicles, and take out their false teeth in retaliation
for spontaneous laughter by one of their own staff members.
64. The defendants provided no individual
areas of inspection free from the prying eyes of other officers and inmates
when in fact it was not [*35] what is known as an "emergency"
situation.
Complaint at 9-11.
Except for plaintiffs'
allegations about cross-hall visibility into the room where the search
occurred, defendants' contentions are generally in agreement with plaintiffs'
allegations as to the scope and type of strip search that occurred:
3. On February 18, 2000 at approximately 3:20
p.m. the emergency response team responded to a 10-33 alarm(disturbance), which
indicated that there was a fight in progress in front of the Laurel Building in
the canteen line. (LaPrise Aff. Pars. 2, 3, attached hereto as Ex. A; Compl.
Par. 49.) Upon arrival of the emergency response team, there was no fight in
progress. There were no inmates with apparent injuries, and none of the inmates
admitted to involvement in a physical altercation. (Ex. A Par. 4; Compl. Par.
51.)
4. A strip search was conducted of all the
inmates that were contained in the area. The search involved approximately 60
inmates and was conducted in a room located on the basement level, across from
the canteen area. The room, which is completely enclosed with four walls, has
one door, and is approximately 25 feet by 25 feet in size. The room is in close
proximity to where the inmates were being contained outdoors, the room was available, the room was indoors
where it was warm, the room afforded the inmates privacy while being searched,
and the room allowed the search to be conducted out of view of members of the
opposite sex. (Ex. A Par. 6; Compl. Par. 55.)
Docket No. 26 at 2-3.
Defendants do not agree that the purpose of the search was retaliatory, instead
arguing that the search was "an attempt to determine which inmates were
involved in the physical altercation" and was "ordered based upon the
10-33 alarm and the information received from Tower 1 that a fight had occurred
in the canteen line." Docket No. 26 at 7.
IV.
Motion to Dismiss, or in the Alternative, for Summary Judgment
A.
Introduction
The
court will first analyze issues involving the state's assertion of sovereign immunity under the Eleventh
Amendment. The court will then determine whether injunctive relief is
appropriate under the doctrine of Ex Parte Younger and whether there are any
grounds for declaratory relief. The court will then move to discussing the
various claims of harassment and the allegedly improper visual cavity search,
and determine whether qualified immunity protects the individual defendants
from suit in their individual capacities.
The
court emphasizes that plaintiffs are proceeding pro se and thus each individual
plaintiff represents himself only. It is a matter of concern to the court that
numerous filings of the plaintiffs are signed by only a few of the plaintiffs
in what appears to be a representative capacity for all of the plaintiffs. The
court will treat each filing as being from only those plaintiffs who signed the
filing.
B.
Sovereign Immunity
The court must now consider what
relief, if any, could lawfully be awarded the plaintiffs if the case does
proceed to trial. Defendants raise the issue of the state's sovereign immunity
under the Eleventh Amendment. Defendants argue that both "the Department,
and the named defendants [*36] in their official capacities, are immune from
suit for any alleged deprivation of plaintiffs' rights under 42 U.S.C. §
1983." Docket No. 26 at 16. The doctrine of sovereign immunity protects
the state from suits for money damages. This protection extends to state
employees sued in their official capacities. See Hawkins v. Rhode Island Lottery Commission, 238 F.3d 112, 116 (1st
Cir. 2001). All claims against the defendants in their official capacities that
seek relief in the form of money damages are dismissed in the Order below.
C.
Injunctive Relief
The state's sovereign immunity,
however, does not prevent defendants from requesting injunctive relief against
state employees in their official capacities, under case law originating in Ex
Parte Younger, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and more
recently extended in Will v. Michigan Department of State Police, 491 U.S. 58,
105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). Nevertheless, the court does not find
that any injunctive relief would be appropriate here as the plaintiffs state in
their Complaint that the alleged acts of harassment occurred from November 7,
1999 through January 27, 2000. By plaintiffs' own admission these acts are not
ongoing. Moreover, the alleged visual cavity search occurred on February 8,
2000, and no allegation has been made that this type of activity is common or
may happen again in the immediate future. The court will not issue a general
order that would make it more difficult for the warden legitimately to look for
contraband in cases where that action is warranted. Plaintiffs have made no
showing that this type of order would be necessary to protect plaintiffs'
rights. Plaintiffs allegations do not state a claim entitling them to
injunctive relief.
D.
Declaratory Relief
The
court has power to grant declaratory relief under 28 U.S.C. § 2201, "upon
the filing of an appropriate pleading." The determination as to appropriateness
of declaratory relief requires an exercise of discretion. As Judge O'Toole
explained:
The Declaratory Judgment Act, 28 U.S.C. §
2201, provides that a court "may"
provide declaratory relief, but the decision to award such relief rests
within the court's discretion. See El Dia, Inc. v. Hernandez Colon, 963 F.2d
488, 493 (1st Cir.1992) (noting that the Act "neither imposes an
unflagging duty upon the courts to decide declaratory judgment actions nor
grants an entitlement to litigants to demand declaratory remedies").
"Because the Act offers a window of opportunity, not a guarantee of
access, the courts, not the litigants, ultimately must determine when
declaratory judgments are appropriate and when they are not." Ernst & Young
v. Depositors Economic Protection Corp., 45 F.3d 530, 534 (1st Cir.1995).
EMC Corporation v. Roland, 916 F. Supp.51, 53
(D.Mass. 1996)
The
court concludes that plaintiffs have failed to allege a dispute for which
declaratory relief would be appropriate. The court will not undertake to make a
statement in the abstract about alleged rights of the parties where no showing
of an ongoing controversy has been proffered. Doing so would be particularly
inappropriate because of the likelihood of undermining the exercise of administrative
discretion of prison officials in ways unforeseeable to this court.
The remaining claims for relief
are for money damages against defendants in their individual capacities.
Ordinarily a court looks first at issues of qualified immunity to determine
whether money damages [*37] are recoverable. Before determining whether
qualified immunity applies in these circumstances, however, the court will
address whether a provision in the Prison Litigation Reform Act, namely 42
U.S.C. § 1997e(e), prevents recovery of money damages by plaintiffs.
This provision states:
No
Federal civil action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury.
42 U.S.C. § 1997e(e).
The
Court of Appeals for the First Circuit has not ruled on the application of this
provision. A district judge in the District of Maine, however, recently
explained:.
Adding the 42 U.S.C. § 1997e(e) requirement
of physical injury prevents prisoners from turning every psychic trauma, no
matter how deliberately inflicted, into a cause of action. The First Circuit
has not had occasion to mention 42 U.S.C. § 1997e(e). However, elsewhere
prisoners have seen their lawsuits fail when they alleged far more egregious
conduct than does Rodriguez because of a want of physical injury. See, e.g.,
Evans v. Allen, 981 F. Supp.1102, 1107, 1109 (N.D.Ill.1997) (bodily fluids
thrown at prisoner insufficient). Rodriguez's failure to allege physical injury
is fatal to any claim for damages.
Rodriguez v. Leeman, 2001 U.S. Dist. Lexis
17684, No. CIV. 01-72- P-C, 2001 WL 1328597 at 2* (D.Me. 2001).
Plaintiffs seek money damages
for their claims of harassment and their claim that an improper visual cavity
search was conducted. The court will
dismiss all claims of harassment under section 1997e(e) as being claims
for emotional distress without an accompanying physical injury. The court does
not make any ruling on the merits of contrasting contentions about whether
discriminatory harassment occurred at NCCI-Gardner. The court also recognizes
that at some point, if discriminatory harassment occurs, its nature and
consequences may support claims of constitutional violations that would permit
recovery of damages against defendants in their individual capacities even
where no physical injury is proved. Based on the record before me, however, I
hold that plaintiffs have not stated a legally cognizable claim for alleged harassment,
primarily if not entirely verbal. Therefore, claims based on allegations of
harassment will be dismissed in the Order below.
A more difficult question is
presented, however, regarding whether section 1997e(e) independently prevents
recovery of money damages for the alleged visual cavity search. First, a visual
cavity search causes a physical invasion of privacy that may qualify as a
physical injury for the purposes of section 1997e(e). Second, different views
have been expressed about whether a claim for recovery for violation of a
constitutional right is materially different from a claim for recovery for
emotional or psychological distress and thus is not precluded by section
1997e(e). This issue has not yet been decided by the Court of Appeals for the
First Circuit. A judge of this court, however, recently decided:
Where the harm that is constitutionally
actionable is physical or emotional injury occasioned by a violation of rights,
§ 1997e(e) applies. In contrast, where the harm that is constitutionally
actionable is the violation of intangible rights--regardless of actual physical
or emotional injury--section 1997e(e) does not govern.
Shaheed-Muhammad v. Dipaolo, 138 F. Supp.2d
99, 107 (D.Mass. 2001)(Gertner, D.J.).
[*38]
It appears likely that the conducting of an unwarranted visual cavity search
could be determined to be the type of rights violation that would be actionable
under Judge Gertner's formulation. A visual cavity search is a very serious
intrusion on any individual's privacy. The Court of Appeals for the First
Circuit has held that courts must carefully consider the circumstances
associated with this type of search. See
Swain v. Spinney, 117 F.3d 1 (1st Cir. 1997). Prisoners, even though
incarcerated, have some degree of Fourth Amendment protection, and this
protection extends to shielding prisoners from unreasonable visual cavity
searches. See Arruda v. Fair, 710 F.2d
886 (1st Cir. 1983).
It
remains true, however, that section 1997e(e) does not prevent the court from
issuing injunctive or declarative relief in appropriate circumstances. Thus, an
avenue for addressing a potential violation of rights is available even if
money damages would not be available. I conclude, then, that I should not invoke
an interpretation of section 1997e(e) as the basis for dismissal of claims
against defendants individually in this case. Instead, I decide on the basis of
qualified immunity, as explained below.
E.
Qualified Immunity
Are defendants sued in their individual
capacities in this case protected from suit for money damages by the doctrine
of qualified immunity? Qualified
immunity applies when a government official's "conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have knowledge." Harlow v. Fitzgerald, 457 U.S.
800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
In
determining whether this immunity is applicable here the court must look at the
Complaint and determine whether the allegations are sufficient to overcome the
assertion by defendants of qualified immunity. It is not sufficient for
plaintiffs to show merely a mistake in judgment as qualified immunity protects
"all but the plainly incompetent or those who knowingly violate the law."
Hunter v. Bryant, 502 U.S. 224, 229, 116 L. Ed. 2d 589, 112 S. Ct. 534
(1991)(internal citations and quotations omitted). Moreover, any analysis of
qualified immunity in this context should be done with the understanding that a
court normally gives great deference to prison officials in matters of
"prison safety, security and discipline." Wood v. Clemons, 89 F.3d
922, 928 (1st Cir. 1996).
Here, beyond genuine dispute,
prison officials had a reasonable justification for conducting a visual cavity
search. An alarm was sounded in the prison because of what appeared to be a
fight. The Court of Appeals for the First Circuit has held that in order to
ensure prison security, a need exists to use visual cavity searches at certain
times in order to keep out contraband. Arruda, 710 F.2d at 887. The search must generally be based on a
reasonable suspicion that the inmate has contraband. See Roberts v. Rhode Island, 239 F.3d 107 (1st
Cir. 2001). A reasonable suspicion can be inferred in some instances without
more proof, as where an inmate has met with visitors or has committed a
disciplinary infraction. Roberts at 111-12. A history of high amounts of
contraband in a particular prison may also be taken into account. Nevertheless,
the focus of the justification inquiry is on finding contraband. The Department
of Corrections' own regulation makes this connection clear in that it states:
Strip searches should be employed, when
necessary, for the close scrutiny of an inmate's person in determining if that
inmate is carrying an item(s) considered to be contraband.
103 D.O.C. 506.03(1)
The
Court of Appeals for the First Circuit has held that "the 'touchstone' of
the [*39] qualified immunity question is the concept of 'objective legal
reasonableness'." Wood, 89 F.3d at 927, citing Anderson v. Creighton, 483
U.S. 635, 639, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). In this case, the
sounding of the alarm, the potential of a disciplinary infraction, and the
applicable prison procedure regarding contraband, provided an objective
justification for the prison officials' actions.
A dispute might be presented in
this case about whether the motivation for the search was to find contraband,
or to enforce discipline, or some other purpose (of course, the motivations may
differ among defendants). Also, a suit might be presented about whether the
visual cavity search could have been narrowed in order to search only those
individuals most likely to have been involved in the reported fight.
Nevertheless, under the applicable precedents regarding qualified immunity, I
conclude that the individual defendants are protected against liability in
their individual capacity because an objectively reasonable justification to
perform a visual cavity search existed and thus the prison officials' "conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have knowledge."
F.
Supervisory Officials
The
court must also determine whether Supervisor Bissonnette can be held liable in
his individual capacity for the actions of his subordinate employees. In order
to hold Superintendent Bissonnette liable, the court would have to find
acquiescence or participation in a constitutional violation, or an affirmative
link between the conduct of the supervisor and the employee. See Voutour v.
Vitale, 761 F.2d 812, 819 (1st Cir. 1985). Part of the basis for a supervisor's
liability is missing when no employee under his supervision is liable. Since
claims against all employees of Superintendent Bissonnette are being dismissed,
the claims of supervisory liability against Superintendent Bissonnette will
also be dismissed.
V.
Motion to Amend Complaint
The
Order below denies leave to file the Motion to Amend because it is untimely and
not in the proper form. Although the court understands that plaintiffs are pro
se, the court will not permit a motion that so directly is counter to its
Procedural Order of November 9, 2001. The set of plaintiffs who signed the
motion to amend are not the same set of plaintiffs who signed the proposed
Amended Complaint. As explained earlier, no plaintiff is permitted to represent
any other person. Moreover, the plaintiffs and other individuals signing the
motion to amend attempt to both add and subtract plaintiffs and add defendants
as well as claims in this matter without so moving and without any apparent
justification.
Concerns about management of a case in which
plaintiffs are allowed to join claims arising from separate incidents each
involving different parties and predominantly unrelated issues weigh heavily
against exercising discretion, when any exists under the Federal Rules, to
bring into one civil action such a complex array of claims and parties as
results when multiple incidents involving different parties are allowed to
proceed in one case.
Keeton, Judging in the American Legal System,
§ 16.6.4., p. 364 (1999).
Finally, the court's determination that this matter should be dismissed as
a matter of law would not be altered by any of the new claims made in the
amended complaint. For all these reasons, the Order below denies leave to file
the Motion to Amend Complaint.
[*40] VI. Motion to Supplement Complaint
Plaintiffs have moved to supplement complaint. The Order below denies
leave to file this motion for the reasons stated in Part V, above.
VII. Motion to Compel
The
record indicates that defendants have not responded to requests for discovery
by plaintiffs. As the court has decided to dismiss all claims against
defendants for the reasons explained in this memorandum, the Order below
dismisses the Motion to Compel as moot.
VIII. Motion to Strike
The
court will not strike defendants' Opposition to the Motion to Amend as it does
not appear that any of the plaintiffs has suffered any prejudice from the
delay. The court has treated the filing as a Reply.
IX.
Conclusion
In
the distinctive circumstances of this case, in the exercise of discretion, I
find it appropriate to leave each party to bear that party's own costs. The
judgment will be for defendants, without costs.
In
reaching this decision, I have not in any way relied on any assertion of fact
in defendants' submissions that goes beyond facts stated in the plaintiffs'
pleadings. The regulations that I have cited, though not stated in the
plaintiffs' pleadings, are matters of record that do not require evidentiary
submissions. In these circumstances, I rule on the defense motion (Docket No.
25) as a motion to dismiss rather than treating it as a motion for summary
judgment.
ORDER
For
the foregoing reasons, it is ORDERED:
(1) Plaintiffs' Motion to Supplement
Complaint (Docket No. 40) is DENIED.
(2) Plaintiffs' Motion to Amend (Docket No. 47)
is DENIED.
(3) Defendants' Motion to Dismiss (Docket No.
25) is ALLOWED.
(4) Plaintiffs' Motion to Compel (Docket No.
43) is DISMISSED as moot.
(5) Plaintiffs' Motion to Strike (Docket No.
50) is DENIED.
(5) The Clerk is directed to issue forthwith
on a separate document a Final Judgment as follows:
For
the reasons stated in the Opinion and Order of January 4, 2002:
Judgment for defendants, without costs.
Robert E. Keeton
United States District Judge
Final Judgment
January 4, 2002
For
the reasons stated in the Opinion and Order of January 4, 2002:
Judgment for defendants, without costs.
By
the Court,
Robert E. Keeton
United States District Judge
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