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Plaintiff’s Motion for Distribution of Declaration Forms and to Attach Affidavit to

Declaration Forms (Dkt. # 50, #56), Motion that Subpoenas and Depositions be Sent by Legal Mail

(Dkt. # 55), Motions for Class Action (Dkt. # 77, 86), and two third party motions to join (Dkt. #

87, 88) shall be addressed by separate order.

ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PATRICK DRUM,

Plaintiff,

v.

HAROLD CLARKE,

Defendant.

Case No. C06-5360 RBL/KLS

ORDER GRANTING IN PART AND

DENYING IN PART VARIOUS

MOTIONS FILED BY PLAINTIFF

This civil rights action has been referred to United States Magistrate Judge Karen L.

Strombom pursuant to Title 28 U.S.C. § 636(b)(1)(B) and Local MJR 3 and 4. Presently pending

before the Court are numerous motions filed by Plaintiff. In this Order, the Court will discuss and

rule on several of Plaintiff’s outstanding motions.1

I. DISCUSSION

Plaintiff has filed a civil rights lawsuit under 42 U.S.C. § 1983 naming Harold Clarke,

Secretary of the Department of Corrections (DOC) as sole Defendant. (Dkt. # 11). Plaintiff alleges

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26 ORDER - 2

that his constitutional rights were violated by Defendant Clarke because he manages policies and

dictates rules for DOC. (Id. at 2). Plaintiff alleges that a corrections officer used excessive force and

injured him during an infraction hearing. Plaintiff alleges that the incident was captured on video

tape but because the tape was disposed of pursuant to DOC policy, he was not able to present

evidence of his innocence contrary to written reports stating otherwise. (Id. at 3). Plaintiff seeks an

order directing DOC to create a policy to retain security camera videos. (Id.).

A. Motion to Verify and Confirm Authenticity of Amended Complaint (Dkt. # 48)

Plaintiff seeks to have his Amended Complaint, its attachments, and his declarations verified

and authenticated by the Court. (Dkt. # 48). Defendants object to the motion on the grounds that

there is no legal basis for Plaintiff’s request, it is not the Court’s function to verify documents, and

Defendants have not been served with all the documents Plaintiff seeks to have verified and

authenticated. (Dkt. # 65).

There is no legal basis for the relief Plaintiff seeks. This Court does not verify documents nor

will it rule upon the authenticity of evidence at this stage in the litigation. Such evidentiary rulings

are normally reserved for pre-trial motions following submission of the parties’ joint status report

and exhibit lists. Accordingly, Plaintiff’s motion (Dkt. # 48) shall be denied.

B. Motion for Order that Notaries Public Serve Subpoenas (Dkt. # 52), Motion for

Issuance of Subpoenas (Dkt. # 53), Motion for Deposition Upon Written Questions

(Dkt. # 54), and Motion for Order that SCCC Serve Subpoena (Dkt. # 59)

1. Deposition Upon Written Questions, Issuance and Service of Subpoenas

Plaintiff seeks to take the depositions upon written questions of eleven individuals. (Dkt. #

54). Plaintiff also requests the issuance of twelve subpoenas. (Dkt. # 53). Eleven of the subpoenas

are related to the depositions upon written questions and one of the subpoenas is for the production

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of documents pursuant to Rule 45, directed to the Associate Superintendant of Stafford Creek

Corrections Center. Plaintiff’s request for subpoenas shall be dealt with in subparagraph 2 below.

Defendant objects to Plaintiff’s motion to take the depositions upon written questions

because Plaintiff failed to serve the written questions on Defendant to allow the lodging of objections

and submission of cross-questions, and because Plaintiff seeks to take in excess of the ten depositions

allowed under Fed. R. Civ. P. 31(a)(2)(A). (Dkt. # 63). Plaintiff states that he did serve Defendant,

although it is unclear whether such service occurred prior to or concurrent with these motions. (Dkt.

# 75). 

While Defendant has provided the Court with general objections to the written questions,

specific objections have not been lodged, the parties have not conferred, and there is no discovery

motion for the Court’s consideration. 

Additionally, Plaintiff has not provided the Court with an adequate explanation of why he

should be allowed to take more than the ten depositions allowed under the Rules. See Fed. R. Civ.

P. 30(a)(2)(A) and 31(a)(2)A). To the extent Plaintiff wishes to take additional depositions, he

should first confer with opposing counsel. If the parties cannot agree, Plaintiff must seek leave of

Court pursuant to the rules. The Plaintiff should set forth specifically the information he seeks and

why the information he seeks is relevant and necessary. 

Fed. R. Civ. P. 31 provides that a party desiring to take a deposition upon written questions

shall serve them upon every other party with a notice describing the person to be deposed and all

questions, including cross-redirect and re-cross. See Rule 31 and Advisory Committee Notes. 

Service is required so that all parties may be informed and able to fully participate in the proceedings. 

The parties need to follow Rule 31(a)(3) and (4). Once all questions for the deponent have

been set forth, they are all to be provided to the person conducting the deposition (along with a copy

of the notice of deposition), who records the answers. 

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 The Court anticipates that the Attorney General’s office shall be designated as the party to

retain the originals of the answers to the written questions (with copies provided to Plaintiff) given

the possibility that Plaintiff’s legal materials may be moved. 

3

Although Defendant complains that Plaintiff has not identified the persons whom he wishes

to depose, Rule 31 states that if the name of the person is not known, a general description sufficient

to identify the person or the particular class or group to which the person belongs should be

included. Plaintiff has sufficiently done so.

ORDER - 4

The Court also strongly urges the parties to confer in an attempt to come to an agreement

with regard to the individual who shall serve as the “officer designated in the notice” who shall take

the testimony of the witness in response to the questions and to prepare, certify and file or mail the

deposition in the manner provided by Rule 30( c), (e) and (f).2

 If the parties are unable to agree in

this regard, Plaintiff is invited to renew his motion.

2. Motion for Subpoenas (Dkt. # 53)

The Clerk of the Court will issue ten subpoenas and send them to Plaintiff. Once all the

written questions have been exchanged pursuant to Fed. R. Civl P. 31(a)(4) as discussed above,

Plaintiff must complete them with the names and addresses of the witnesses to be deposed3

 and

proceed as directed in Fed. R. Civ. P. 31(b).

Plaintiff is advised that he must bear his own discovery costs, including service of subpoenas

on third parties. Related to Plaintiff’s request for the issuance of subpoenas, is Plaintiff’s motion that

institutional notaries public be appointed to serve the subpoenas in his stead. (See Dkt. # 52;

Defendants’ Response at Dkt. # 63). Plaintiff provides no authority for such a request, but his

request appears to be based on a mistaken belief that Rule 31 requires the officer taking the

deposition to serve the deposition notice. The rule simply requires the party taking the deposition; in

this case, the Plaintiff, to effect service, which includes obtaining “a person who is not a party and is

not less than 18 years of age” to serve the subpoena. The Clerk of the Court shall issue the

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subpoena, but it is up to the party to complete it before service. Fed. R. Civ. P. 45(a)(3). Despite

Plaintiff’s in forma pauperis status, Plaintiff bears the burden of ensuring that service is completed

according to the dictates of Rule 45. 

Included in Plaintiff’s request for subpoenas (Dkt. # 53), is a Rule 45 subpoena directed to

Victoria Roberts, the Associate Superintendent of SCCC, for the production of documents related to

the disciplinary hearing and appeal hearing of inmate James Davis. According to Plaintiff, these

documents relate to a correction officer’s claim that Mr. Davis handed another inmate a bag of

marijuana. Plaintiff states further that the security tape in Mr. Davis’ case reflects that there was no

hand-off of drugs but simply a hand-shake between the inmates, but that, as in his case, the security

tape was not retained. Plaintiff maintains that this information is necessary because it supports his

allegation that the non-retention of security tapes is a statewide pattern. (Id. at 2). Plaintiff states

further that the evidence is not confidential and the investigation is concluded. 

Defendant objects to the information requested on the grounds that Plaintiff is seeking

information regarding another inmate. Defendant states that it is against DOC practice and policy

and that an inmate may not obtain information regarding another inmate as this information can be a

threat to the safety and security of the institution. Defendant further objects on the grounds that

Plaintiff may not discover documents from a non-party, and that Plaintiff has not met the

requirements of Fed. R. Civ. P. 31(a)(3) as the questions were never served on Defendant. (Dkt. #

63).

Contrary to Defendant’s last stated objection, Plaintiff does not seek the information through

Rule 31(a)(3), but through a Rule 45 subpoena, which is a proper vehicle to seek the production of

documents from a non-party witness. Additionally, as Plaintiff is not seeking to depose Ms. Roberts,

the request is not subject to the ten deposition limit of Rule 31. However, as noted above, Plaintiff is

required, pursuant to the dictates of Rule 45 to complete the subpoena and ensure that it is properly

served on Ms. Roberts in accordance with the dictates of Rule 45 at his own expense. After the

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subpoena has been properly served on Ms. Roberts, and a copy on Defendant, Defendant and/or Ms.

Roberts may file objections, the parties shall confer in an attempt to reach an amicable agreement as

to any objections lodged, and in the event there remains a dispute, shall file a certificate that a good

faith effort to confer was made prior to filing any motion to compel and/or for protective order with

this Court. 

Accordingly, Plaintiff’s motion for a subpoena directed to Ms. Roberts shall be granted. 

Plaintiff’s motion to appoint notaries public to serve subpoenas (Dkt. # 52) shall be denied; motion

for issuance of subpoenas (Dkt. # 53) and motion for depositions upon written questions shall be

granted (for ten depositions); and motion for order that SCCC serve subpoena upon Superintendent

Roberts (Dkt. # 59) shall be denied. 

C. Motion to File Supplemental Pleadings (Dkt. # 57)

Plaintiff seeks to supplement his Amended Complaint with an attachment. (Dkt. # 57). 

Plaintiff filed his original complaint on June 23, 2006. (Dkt. # 5). On July 31, 2006, Plaintiff filed an

Amended Complaint completely superseding his original complaint. (Dkt. # 11). On November 9,

2006, the Court granted Plaintiff’s motion to amend his complaint a second time, with attachments. 

(Dkt. # 31). At that time, the Plaintiff was advised that the amended complaint should include all

parties, factual allegations, causes of action, relief sought and exhibits. (Id. at 3). The Court stated

further that it would not accept any supplements to or references to earlier filings as part of the

second amended complaint. (Id.).

Plaintiff now seeks to supplement his second Amended Complaint with a document, a kite

that he “prepared on January 7, 2007 and submitted using normal interdepartmental jail proceedings

and which was returned to him on January 12, 2007 by way of a correctional officer handing it back

to him through his cell door.” (Dkt. # 57). Plaintiff contends that this kite further supports his

claims and that it is a “transaction, occurrence and event that has occurred since Dkt. # 38 [the

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Defendant raises this objection to several of Plaintiff’s motions. In a later filing, Plaintiff

explains that he has been serving copies of his motions on defense counsel. Plaintiff makes reference

to mail logs in Attachments A through D and his Declaration in Exhibit 1. (See Dkt. # 75). 

However, neither the Attachments nor Exhibit were attached to the Court’s copy. As a matter of

practice, Plaintiff should include a proof of service with all motions, pretrial statements and other

filings. See Dkt. # 47. “Such proof of service shall accompany both originals and duplicates filed

with the Court.” Id. Failure to do so may subject Plaintiff to sanctions. This also ensures that the

Court and parties remain informed that service has been completed and avoids confusion.

ORDER - 7

Amended Complaint] was filed.”

Defendant objects, arguing that there is no need to amend the complaint with the information

as it is unnecessary, irrelevant and does not add to the complaint. (Dkt. # 63). Defendant further

argues that what Plaintiff is proposing is not a proper amendment as it does not fully supersede

Plaintiff’s prior complaint. Defendant also objects as Plaintiff failed to properly serve his motion on

Defendant.4

 (Id. at 4.).

Plaintiff proposes a supplement, not an amendment to the Amended Complaint with the

attachment of the kite, and is apparently relying on the “relation back” language of Rule 15. The

purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties

as possible by allowing the addition of claims which arise after the initial pleadings are filed. See

Case-Swayne Co. v. Sunkist Growers, Inc., 369 F.2d 449, 462 (9th Cir. 1966), rev’d on other

grounds, 389 U.S. 394 (1967) [emphasis added].

While the attachment may be evidence of a factual occurrence that relates to Plaintiff’s claim,

it does not give rise to a separate claim or defense arising out of the same conduct, transaction or

occurrence. Thus, the Court finds no reason to allow the proposed supplement. Rather, the

attachment may be a matter of discovery or evidence that Plaintiff may wish to use in his case at trial. 

Accordingly, Plaintiff’s motion to supplement the Amended Complaint (Dkt. # 57) shall be denied.

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D. Motion for Order to Refute Kite (Dkt. # 58)

Plaintiff moves for an Order directing Defendant refute the authenticity or waive the issue of

authenticity of a kite, which he has attached in “Addendum One.” (Dkt. # 58). According to

Plaintiff, there are several copies to a kite, only one of which, the white copy, is issued to Plaintiff. 

Apparently, one or more copies is retained by the DOC. Plaintiff states that he served Defendant’s

counsel with a copy of his motion and that Defendant retains a copy of the kite in question. 

Defendant states that he will not waive any issues as to authenticity for any kite submitted by

Plaintiff nor will he make any comment regarding the document. Additionally Defendant argues that

it is not the duty of the Court to order the Defendant to accept any documents provided by Plaintiff

as authentic without being able to fully inspect such document. Finally Defendant states that he was

never served with Plaintiff’s motion. (Dkt. # 63). 

The Court declines to rule on any issues of authenticity at this stage in the litigation. 

Evidentiary issues are normally reserved for pre-trial motions following the filing of the parties’ joint

status report. Accordingly, Plaintiff’s motion (Dkt. # 58) is denied.

E. Motion to Determine Sufficiency of Answer and Objection (Dkt. # 60), Motion for

Evidentiary Judicial Hearing and In Camera Review (Dkt. # 61), Motion to Determine

the Sufficiency of Answer and Objections to Second Request for Admissions (Dkt. # 66)

Plaintiff moves the Court to rule upon the sufficiency of Defendant’s answer and objection

to Plaintiff’s request for admission. (Dkt. # 60). Defendant objects to the motion on the grounds

that Plaintiff has failed to comply with Rule 37(a)(2)(A)’s requirement to meet and confer. Plaintiff’s

motion contains no certification that he has made a good faith attempt to meet and confer with

opposing counsel prior to filing his motion. (Dkt. # 64). 

Plaintiff also moves the Court to rule upon several objections made by Defendant to

Plaintiff’s first set of interrogatories and also requests in camera review of information identified by

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Defendant as confidential so that the Court may determine whether the information is subject to

disclosure. (Dkt. # 61). Defendant objects to the motion on the grounds that Plaintiff has failed to

comply with Rule 37(a)(2)(A)’s requirement to meet and confer. (Dkt. # 64). Plaintiff argues that

no such requirement exists. 

Finally, Plaintiff asks the Court to rule on the sufficiency of Defendant’s answers and

objections to Plaintiff’s second requests for admissions. (Dkt. # 66). Plaintiff attaches Defendant’s

answers and objections, but fails to submit a certification that he has made a good faith attempt to

meet and confer with opposing counsel prior to filing his motion.

Plaintiff is advised that the parties must confer on all discovery issues prior to seeking relief

from the Court. Pursuant to Rule 37(a)(2)(A), if a party fails to make a disclosure required by Rule

26(a), any other party may move to compel and for appropriate sanctions. However, the motion

must include a certification that the movant has in good faith conferred or attempted to confer with

the party not making the disclosure in an effort to secure the disclosure without court action. Id.

[emphasis added].

Accordingly, the Plaintiff’s motions (Dkt. # 60, 61 and 66) will be denied. The Court will not

entertain motions to compel without certifications that the parties have first made a good faith

attempt to confer and resolve their discovery differences.

Consistent with the foregoing, IT IS ORDERED AS FOLLOWS:

1. Plaintiff’s Motion to Verify and Confirm Authenticity of Amended Complaint (Dkt. #

48) is DENIED;

2. Plaintiff’s Motion for Order that Notaries Public Serve Subpoenas (Dkt. # 52) is

DENIED;

3. Plaintiff’s Motion for Issuance of Subpoenas (Dkt. # 53) is GRANTED; and the

Clerk of the Court is directed to issue ten (10) Subpoenas and mail them to Plaintiff

for completion and service; 

4. The Clerk of the Court shall also issue a Subpoena and mail it to Plaintiff for

completion and service on Victoria Roberts, Associate Superintendent of Stafford

Creek Corrections Center ;

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5. Plaintiff’s Motion for Deposition Upon Written Questions (Dkt. # 54) is GRANTED

to the extent Plaintiff shall be allowed to submit questions for ten (10)

depositions;

6. Plaintiff’s Motion for Order that SCCC Serve Subpoena (Dkt. # 59) is DENIED;

7. Plaintiff’s Motion to File Supplemental Pleadings (Dkt. # 57) is DENIED;

8. Plaintiff’s Motion for Order to Refute Kite (Dkt. # 58) is DENIED;

9. Plaintiff’s Motion to Determine the Sufficiency of Answers and Objections (Dkt.# 60)

is DENIED;

10. Plaintiff’s Motion for Evidentiary Hearing and In Camera Review (Dkt. # 61) is

DENIED;

11. Plaintiff’s Motion to Determine Sufficiency of Answers and Objections to Second

Requests for Admission (Dkt. # 66) is DENIED; and

12. The Clerk is directed to send copies of this Order to Plaintiff and counsel for

Defendants.

DATED this 6th day of March, 2007.

A

Karen L. Strombom

United States Magistrate Judge

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