Dudley v. Cesolini

Filing 61

ORDER denying 57 Plaintiff' s Motion for Leave to File Second Amended Complaint. Signed by Magistrate Judge Lawrence O Anderson on 11/16/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Damian Dudley
Plaintiff,

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vs.

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Captain Cesolini,

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Defendant.
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No. CV-11-387-PHX-SMM (LOA)
ORDER

This matter is before the Court on Plaintiff’s Motion to File a Second Amended

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Complaint, doc. 57, adding two new claims and sixteen new defendants. Defendant opposes

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the motion, doc. 58. For the reasons set forth below, the Court will deny the motion.

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I. Background

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On July 29, 2010, Plaintiff, proceeding pro se, filed this civil rights action in

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Arizona Superior Court. (Doc. 1) Plaintiff filed a First Amended Complaint on August 18,

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2010. On February 28, 2011, Defendant served a notice of Removal to Federal Court.

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(Doc. 1) On March 9, 2011, Defendant answered the First Amended Complaint. (Doc. 5)

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Plaintiff alleges violations based on an October 27, 2009 cell search. On October 28, 2009,

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Plaintiff filed an inmate grievance relating to books and magazines allegedly taken from his

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cell on October 27, 2009. (Doc. 23, Exhs. A, B) In his grievance, Plaintiff discussed the

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Maricopa County Sheriff’s Office (“MCSO”) jail policies and procedures relating to

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contraband, altered items, and excess items. (Id.) On December 23, 2009, Plaintiff served

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a Notice of Claim on MCSO alleging that four books and seven magazine were taken during

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an October 27, 2009 cell search, and claiming that MCSO jail policies and procedures did

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not authorize taking his property.

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On March 17, 2011, Plaintiff filed a motion for leave to file a second amended

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complaint which the Court denied for failure to comply with LRCiv 15.1 and Fed.R.Civ.P.

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15(a)(2). (Doc. 1) Thereafter, the Court issued a Scheduling and Discovery Order, doc. 13,

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setting an October 3, 2011 deadline for motions to amend or join parties. Plaintiff’s motion

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to amend is signed September 22, 2011 and is timely. The Scheduling and Discovery Order

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set a May 31, 2011 deadline for serving discovery requests. (Doc. 13)

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The parties participated in discovery, and on June 15, 2011, Defendant served his

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Supplemental Answers to Plaintiff’s Interrogatories and Request for Production of

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Documents. As part of these responses, Defendant identified the names and badge numbers

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of officers who may have been involved in the October 27, 2009 cell searches on Tower 24

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at the Lower Buckeye Jail; identified MCSO policies and procedures relating to cell

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searches, contraband, unauthorized property, and excess property; and produced

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supplemental documents relating to the foregoing. (Doc. 58, Uglietta declaration ¶ 2) On

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October 6, 2011, Defendant deposed Plaintiff by telephone. On October 11, 2011, Plaintiff

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filed the pending motion to amend, which Defendant opposes. For the reasons set forth

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below, the Court will deny Plaintiff’s motion for leave to amend.

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II. Analysis

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Federal Rule of Civil Procedure 15 governs the amendment of complaints.

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Because Plaintiff has already amended his complaint and Defendant opposes the motion to

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file a second complaint, Plaintiff needs leave to further amend his complaint. Fed.R.Civ.P.

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15(a)(2). Rule 15 provides that leave to amend should be freely given “when justice so

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requires.” Fed.R.Civ.P. 15(a)(2). The district court has broad discretion regarding

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amendment, particularly when a plaintiff has previously amended the complaint. Sisseton-

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Wahpeton Sioux Tribe of Lake Traverse Indian Reservation v. U.S., 90 F.3d 351, 355-56

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(9th Cir. 1996) (affirming denial of leave to amend where amendments would be futile and

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redundant of earlier amendments). In determining whether to grant leave to amend a
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complaint, the court considers “(1) bad faith, (2) undue delay, (3) prejudice to the opposing

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party; (4) futility of amendment, and (5) whether plaintiff has previously amended his

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complaint.” Allen v City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (affirming

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denial of leave to amend where plaintiff had previously amended and proposed amendments

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were futile). See also Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (citing Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir.1995)), reh'g and reh’g en banc denied, 375 F.3d 810

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(9th Cir. 2004), cert. denied, 543 U.S. 1188 (2005). Here, there is no evidence of bad faith.

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However, the remaining factors weigh against granting leave to amend.

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First, Plaintiff unduly delayed in seeking leave to file a second amended

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complaint. Plaintiff has already amended his complaint once, and waited over year after

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filing his First Amended Complaint, to seek leave to file a second amended complaint.

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Additionally, Plaintiff seeks leave to add Officers Stewart, Barnette, Kenney, Jones, Bryan,

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Johnson, Wibole, Gillett, Hogue, Dugonic, Harlow, Miller and Derwin. He alleges that

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these officers “worked in the LBJ” and that the “entire Tower 24/B-pod was being searched

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by the rest of the Defendants.” (Doc. 57, proposed second amended complaint) Plaintiff

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had information about the individuals who may have participated in the October 27, 2009

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cell search no later than June 15, 2011 when Defendant served his supplemental discovery

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answers identifying those individuals. (Doc. 58, Uglietta declaration ¶ 2) Plaintiff,

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however, waited nearly three months, and until after discovery closed, to move to amend his

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complaint to add these defendants. Plaintiff does not explain the undue delay in seeking

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leave to amend to add numerous defendants. Although delay standing alone does not

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resolve the amendment analysis, it is relevant, “especially when no reason is given for the

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delay.” Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir.

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1999) (citations omitted) (affirming denial of leave to amend where facts were available to

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plaintiff before motion was filed, plaintiff did not explain reason for delay, and filing after

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close of discovery would prejudice defendant).

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Likewise, Plaintiff unduly delayed in seeking leave to amend his complaint to
add a “custom and policy” claim against MCSO and Sheriff Arpaio and to add supervisory
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liability claims against Defendant Cessolini and Rojas. During his deposition, Plaintiff

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admitted that he received a copy of MCSO Jail Rules and Regulations when he became an

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inmate at Towers Jail, before the October 27, 2009 cell search at issue. (Doc. 23, Exh. C;

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doc. 58, Uglietta declaration ¶ 6) Additionally, in his 2009 grievances and Notice of Claim,

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Plaintiff argued that MCSO Jail Rules and Regulation did not authorize the taking of his

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items. (Doc. 23, Exhs. A, B) Thus, no later than 2009, Plaintiff had knowledge of MCSO’s

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“customs and policies” related to contraband, altered items, and excess items. Plaintiff

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could have, but chose not to, included a “custom and policies” claim in his original or first

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amended complaint. Plaintiff, however, waited too long to add such a claim. See Chodos v.

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West Publishing Co., 292 F.3d 992, 1002 (9th Cir. 2002) (affirming denial of amendment

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where alleged “new facts” were available before the first amendment such that the motion to

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amend was a dilatory tactic, after undue delay, and prejudicial to defendant).

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Furthermore, permitting Plaintiff to file a second amended complaint to add new

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claims and defendants after the close of discovery is prejudicial to Defendant and a dilatory

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tactic to prolong this action. During his deposition, Plaintiff indicated that by amending the

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complaint, the litigation “would start over.” (Doc. 58, Uglietta Declaration ¶ 5) Restarting

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the litigation, after discovery has closed, would prejudice Defendant who would be required

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to wait while numerous new defendants were served and participate anew in discovery.
In summary, Plaintiff unduly delayed in seeking leave to file a second amended

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complaint, and permitting amendment would be prejudicial to Defendant. Moreover, it

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appears that Plaintiff’s proposed claims are futile - however, the Court need not consider the

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merits of those claims because the other factors - undue delay, prejudice to defendant, and

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the fact that Plaintiff has previously amended his complaint - support denying Plaintiff’s

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motion.
Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Leave to File Second Amended
Complaint, doc. 57, is DENIED.
DATED this 16th day of November, 2011.

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