Zepeda v. Sullivan et al
Filing
47
ORDER DENYING 38 Plaintiff's Motion for Leave to File Fifth Amended Complaint signed by Magistrate Judge Gary S. Austin on 1/12/2012. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
JAIME L. ZEPEDA,
12
Plaintiff,
13
14
1:06-cv-01391-GSA-PC
ORDER DENYING MOTION FOR LEAVE TO
FILE FIFTH AMENDED COMPLAINT
(Doc. 38.)
v.
W. J. SULLIVAN, et al.,
15
Defendants.
/
16
17
I.
BACKGROUND
18
Plaintiff Jaime L. Zepeda is a state prisoner proceeding pro se and in forma pauperis in this
19
civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this
20
action on October 10, 2006. (Doc. 1.) The Court screened Plaintiff’s Complaint pursuant to 28
21
U.S.C. § 1915A and entered an order on September 25, 2008, dismissing the Complaint for failure
22
to state a claim, with leave to amend. (Doc. 13.) On December 18, 2008, Plaintiff filed the First
23
Amended Complaint. (Doc. 16.) On May 7, 2009, the Court dismissed the First Amended
24
Complaint for failure to state a claim, with leave to amend. (Doc. 18.) On July 13, 2009, Plaintiff
25
filed the Second Amended Complaint. (Doc. 21.) On November 5, 2009, the Court dismissed
26
Plaintiff’s claims for denial of access to the court and deliberate indifference to medical needs, with
27
prejudice, and dismissed the Second Amended Complaint for failure to state a claim, with leave to
28
amend the claims for denial of outdoor exercise, lack of hygiene, and food deficiencies. (Doc. 23.)
1
1
On November 19, 2010, Plaintiff filed the Third Amended Complaint. (Doc. 28.) On January 31,
2
2011, Plaintiff filed a motion to file a Fourth Amended Complaint and lodged a proposed Fourth
3
Amended Complaint. (Docs. 29, 30.) On April 7, 2011, the Court denied Plaintiff’s motion to file
4
a Fourth Amended Complaint and ordered that this case proceed on Plaintiff’s Third Amended
5
Complaint against defendants Cate, Sullivan, Carrasco, Schulties, and John Doe Deputy Director,
6
on Plaintiff’s claims for inadequate outdoor exercise and winter clothing. (Doc. 31.) On August 10,
7
2011, Plaintiff filed a motion for leave to file a Fifth Amended Complaint and lodged a proposed
8
Fifth Amended Complaint. (Docs. 38, 39.) On August 19, 2011, defendants filed an opposition to
9
the motion. (Doc. 40.) On August 31, 2011, Plaintiff filed a reply. (Doc. 43.) Plaintiff’s motion
10
to amend is now before the Court.
11
II.
MOTION TO AMEND – RULE 15
12
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
13
pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,
14
a party may amend only by leave of the court or by written consent of the adverse party, and leave
15
shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). Here, because Plaintiff has
16
already amended the complaint more than once, Plaintiff's pending motion to amend must be granted
17
by the Court before the proposed Fifth Amended Complaint can be filed.
18
“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
19
requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
20
(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the
21
amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
22
delay in the litigation; or (4) is futile.” Id.
23
Plaintiff seeks leave to file a Fifth Amended Complaint to “add additional factual allegations
24
in support of subpart (A) and (B) of claim 10 to the original third amended complaint.” Motion,
25
Doc. 38 at 1:18-20, 4:3-7. Plaintiff also wishes to clarify that he was denied adequate exercise as
26
a result of defendants’ actions, not a result of the modification of Article 43. Plaintiff also wishes
27
to re-state his allegations and claims for overcrowding and violation of due process.
28
///
2
1
Defendants argue that Plaintiff’s motion to amend should be denied because (1) it would
2
prejudice the defendants who have filed a motion to dismiss the Third Amended Complaint, (2) the
3
motion is sought in bad faith because the Court has already dismissed several claims with prejudice
4
in previous orders and did not grant Plaintiff leave to amend within the April 7, 2011 order, (3) it
5
would cause an undue delay in litigation which was commenced nearly five years ago, and (4) it
6
would be futile. Defendants also argue that Plaintiff’s motion is really a motion for reconsideration
7
of the Court’s April 7, 2011 screening order and should be denied because Plaintiff has not shown
8
the Court made any errors or omissions.
9
Plaintiff replies that he seeks to amend the complaint “only to . . . be more detailed and make
10
the Pleading more understandable.” Reply, Doc. 43 at 2:15-18. Plaintiff argues that he should be
11
allowed to reinstate his claims based on inadequate access to soap and lotion because the Court did
12
not dismiss those claims “with prejudice” in the April 7, 2011 order, and he only wishes to cure
13
deficiencies in the claims. Reply at 3-4.
14
The Court finds that Plaintiff’s motion acts, in part, as a request for reconsideration of the
15
Court’s April 7, 2011 screening order, because Plaintiff seeks to reinstate claims that the Court
16
dismissed from the Third Amended Complaint in the screening order.1
17
Motion for Reconsideration
18
Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies
19
relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice
20
and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d
21
737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The moving party “must
22
demonstrate both injury and circumstances beyond his control . . . .” Id. (internal quotation marks
23
and citation omitted). In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff
24
to show “what new or different facts or circumstances are claimed to exist which did not exist or
25
were not shown upon such prior motion, or what other grounds exist for the motion.”
26
27
28
1
In the April 7, 2011 screening order, the Court dismissed Plaintiff’s claims for denial of access to the
courts, supervisory liability, overcrowding, inadequate soap and lotion, failure to protect, state law claims, due
process, and equal protection, based on Plaintiff’s failure to state a claim. (Doc. 31 at 16 ¶4.) Plaintiff was not
granted leave to amend these claims.
3
1
“A motion for reconsideration should not be granted, absent highly unusual circumstances,
2
unless the district court is presented with newly discovered evidence, committed clear error, or if
3
there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma
4
GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted,
5
and “[a] party seeking reconsideration must show more than a disagreement with the Court’s
6
decision, and recapitulation . . . ” of that which was already considered by the Court in rendering its
7
decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
8
The Court has reviewed Plaintiff’s proposed Fifth Amended Complaint and has considered
9
Plaintiff’s arguments and the new allegations and clarifications Plaintiff seeks to add. Plaintiff seeks
10
to reinstate the claims for inadequate soap and lotion, overcrowding, and due process, which were
11
dismissed by the Court in the April 7, 2011 screening order. Plaintiff has not demonstrated that the
12
Court committed clear error, or presented the Court with new information of a strongly convincing
13
nature, to induce the Court to reverse its prior decision. Nor has Plaintiff demonstrated both injury
14
and circumstances beyond his control. Therefore, to the extent that Plaintiff’s motion acts as a
15
request for reconsideration of the Court’s April 7, 2011 order, the request for reconsideration is
16
denied.
17
Plaintiff also requests leave to amend the complaint to clarify that he was denied adequate
18
exercise as a result of defendants’ actions, not a result of the modification of Article 43. Such
19
amendment of the complaint, without more, is futile because the Third Amended Complaint already
20
alleges that Plaintiff was deprived of outdoor exercise “because of [Defendants’] arbitrary and
21
capricious implementations.” Third Amended Complaint at 6 ¶13. Plaintiff’s allegations in the
22
Third Amended Complaint suffice to state a cognizable claim for denial of adequate exercise, as
23
determined in the Court’s screening order. Granting Plaintiff leave to file a Fifth Amended
24
Complaint to make his proposed clarifications at this stage of the proceedings would only cause
25
undue delay in the litigation and prejudice the defendants. Therefore, Plaintiff’s motion for leave
26
to amend shall be denied.
27
///
28
///
4
1
2
3
III.
CONCLUSION
Based on the foregoing, Plaintiff’s motion for leave to file a Fifth Amended Complaint, filed
on August 10, 2011, is DENIED.
4
5
6
IT IS SO ORDERED.
Dated:
6i0kij
January 12, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?