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DaSilva v. Cascade County Detention Center

United States District Court, D. Montana, Great Falls Division

January 12, 2018

ROBERT AYRES DaSILVA, JR. Plaintiff,
v.
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

          John Johnston United States Magistrate Judge

         Plaintiff 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.

         I. MOTION TO AMEND/COMPEL (Doc. 18)

         Mr. DaSilva's first motion contains a number of requests which will be individually addressed herein.

         A. Defendant Lammers

         On 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.

         Defendants 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.

         B. Video

         Mr. 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.

         C. Cascade County

         Mr. 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 respond).

         D. Joshua Racki

         Mr. 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.)

         Mr. 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. ...


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