United States District Court, D. Montana, Great Falls Division
ROBERT AYRES DaSILVA, JR. Plaintiff,
CASCADE COUNTY DETENTION CENTER, COMMANDER O'FALLEN, BOB EDWARDS, C/Os BENNETT, LIGHT, VANZOUT, TIBBETTS, GAMON and WALTERS, Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston United States Magistrate Judge
Robert DaSilva, a prisoner proceeding in forma pauperis and
without counsel, filed a document entitled “Brief and
Order Request with a Motion to Amend and add Cascade County
in place of City of G.F” (Doc. 18) which has been
construed as a motion to amend/compel; a document entitled
“Prisoner's Complaint condition Confounded by
Article II, Section 36 (2017) Montana's Constitution
“Marsy's Law” Violation (Doc. 19) which has
been construed as a motion for reconsideration; and a
document entitled “For Clearification [sic] of
Defendant[s] is Needed” (Doc. 21) which has been
construed as a motion to clarify.
MOTION TO AMEND/COMPEL (Doc. 18)
DaSilva's first motion contains a number of requests
which will be individually addressed herein.
December 13, 2017, this Court issued an Order requiring Mr.
DaSilva to provide the necessary information to effectuate
service on Defendant Patricia Lammers. (Doc. 17.) In his
current filing, Mr. DaSilva argues that he is a pretrial
detainee and therefore it is impossible for him to get
Defendant Lammers's address. He seeks an order for the
release of Defendant Lammers employment records and any
change of address she may have used for a final pay check.
will be directed to provide Mr. DaSilva with Defendant
Lammers' address or alternatively accept service on
behalf of Lammers. Mr. DaSilva will be given an extension of
time to provide service information on Defendant Lammers.
DaSilva also seeks videos of the September 4, 2017 incident
when pepper spray was allegedly used on inmates in P-Pod. As
set forth in the Scheduling Order filed contemporaneously
herewith, Defendants will be required to produce to Mr.
DaSilva within 60 days all documents, electronically stored
information, and tangible things that may be used in proving
or denying any party's claims or defenses. If videos of
the incident at issue exist, those videos could be used in
proving Mr. DaSilva's claims and therefore they must be
produced with Defendants' document production.
DaSilva also seeks to add Cascade County as a Defendant in
place of the City of Great Falls. In his Complaint, Mr.
DaSilva alleged that the City of Great Falls knowing allows
substandard conditions and poorly trained staff at the
Cascade County Detention Center. (Complaint, Doc. 2 at 4.)
The Court has considered whether these allegations if made
against Cascade County as opposed to the City are frivolous,
malicious, fail to state a claim, or seek solely monetary
relief from a defendant who is immune. See 28 U.S.C.
§§ 1915(e)(2), 1915A(b). It has also considered
whether Mr. DaSilva has a reasonable opportunity to prevail
on the merits. See 42 U.S.C. § 1997e(g).
Dismissal is not appropriate at this time. Cascade County
must respond to the Complaint. See 42 U.S.C. §
1997e(g)(2) (while Defendants may occasionally be permitted
to “waive the right to reply to any action brought by a
prisoner confined in any jail, prison, or other correctional
facility under section 1983, ” once the Court has
conducted its sua sponte screening pursuant to 28 U.S.C.
§ 1915(e)(2) and § 1915A(b), and thus, has made a
preliminary determination based on the face on the pleading
alone that plaintiff has a “reasonable opportunity to
prevail on the merits, ” Defendant is required to
DaSilva names Joshua Racki as Cascade County's Chief Law
Enforcement Officer and argues that he should be added as a
Defendant because he is allegedly responsible for seeing that
the Bureau of Prison's policies regarding security and
safety at Cascade County Detention Center are met and makes
certification to the United States Marshals regarding such.
(Doc. 18-2 at 2.)
DaSilva is a state prisoner and the Court fails to see the
relevance of Mr. Racki's representations to the Bureau of
Prisons and/or the United States Marshals to this matter. ...