Morgan v. Tilton et al

Filing 52

ORDER ADOPTING 48 FINDINGS AND RECOMMENDATIONS; ORDER For This Action to Proceed Only Against Defendant c/o M. Hernandez on Plaintiff's Claims For Retaliation and Obstruction of Mail, and Dismissing All Other Claims and Defendants, signed by District Judge Lawrence J. O'Neill on 10/14/2011. Defendants Tilton, Kernan, Yates, Igbinosa, Martinez, Hudson, Grannis, Garrison, Mendoza, Diaz, Silveira, and OBrien are DISMISSED from this action. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KELLY MORGAN,

1:08-cv-00233-LJO-GSA-PC

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Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
(Doc. 48.)

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v.
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JAMES TILTON, et al.,

ORDER FOR THIS ACTION TO PROCEED
ONLY AGAINST DEFENDANT C/O M.
HERNANDEZ ON PLAINTIFF’S CLAIMS
FOR RETALIATION AND OBSTRUCTION
OF MAIL, AND DISMISSING ALL OTHER
CLAIMS AND DEFENDANTS

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Defendants.

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Kelly Morgan (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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filed pursuant to 42 U.S.C. § 1983. The case now proceeds on the Third Amended Complaint filed

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by Plaintiff on July 28, 2011. (Doc. 45.) The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.

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On September 8, 2011, the Court entered Findings and Recommendations, recommending

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that this action proceed only against defendant C/O M. Hernandez on Plaintiff’s claims for retaliation

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and obstruction of mail, and that all other claims and defendants be dismissed based on Plaintiff’s

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failure to state a claim. (Doc. 48.) On September 30, 2011, Plaintiff filed objections and submitted

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a proposed amendment to the Third Amended Complaint. (Doc. 49.)

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In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file,
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including Plaintiff's objections, the Court finds the Findings and Recommendations to be supported

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by the record and proper analysis.

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Plaintiff objects to the Magistrate's recommendation that this action proceed only against

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defendant C/O M. Hernandez for retaliation and obstruction of mail. Plaintiff seeks to add

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allegations to the Third Amended Complaint that defendants C/O A. Diaz and C/O A. Silviera

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assaulted him. Plaintiff contends there is evidence of the assault contained in his form-602 prison

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appeals “which you have as evidence in the courts.” (Doc. 49 at ¶2.)

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Rule 15(a) – Motion to Amend

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,

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a party may amend only by leave of the court or by written consent of the adverse party, and leave

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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, Plaintiff has

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previously amended the complaint three times. (Docs. 23, 43, 45.) Therefore, Plaintiff may not file

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another amended complaint without leave of court.

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient

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to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d

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708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)) The

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“court’s discretion to deny leave to amend is particularly broad where the court has already given

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the plaintiff an opportunity to amend his complaint.” Fidelity Financial Corp. v. Federal Home Loan

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Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).

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The Court finds no good cause to grant Plaintiff leave to amend the Third Amended

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Complaint at this stage of the proceedings to add allegations of assault by defendants Diaz and

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Silviera. The Court screened the Third Amended Complaint pursuant to 28 U.S.C. § 1915(a) and

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found cognizable claims only against defendant Hernandez, for retaliation and obstruction of mail.
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(Doc. 47.) Addition of a claim for assault against defendants Diaz and Silviera at this juncture would

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violate Federal Rule of Civil Procedure 18(a) which prohibits multiple unrelated claims against

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different defendants in the same action. There is no evidence that the alleged assault is related to

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Plaintiff’s cognizable claims against defendant Hernandez. Therefore, it would be futile for Plaintiff

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to amend the complaint to add the assault claim. Accordingly, Plaintiff's motion to amend shall be

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denied.

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III.

CONCLUSION

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Based on the foregoing, THE COURT HEREBY ORDERS that:

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1.

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The Findings and Recommendations issued by the Magistrate Judge on September
9, 2011, are ADOPTED in full;

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2.

This action now proceeds on Plaintiff's Third Amended Complaint, filed on July 28,

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2011, against only defendant C/O M. Hernandez, on Plaintiff’s claims for retaliation

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and obstruction of mail, in violation of the First Amendment;

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3.

All remaining claims and defendants are DISMISSED from this action;

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4.

Defendants Tilton, Kernan, Yates, Igbinosa, Martinez, Hudson, Grannis, Garrison,

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Mendoza, Diaz, Silveira, and O’Brien are DISMISSED from this action based on

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Plaintiff's failure to state any claims upon which relief may be granted against them;

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5.

Plaintiff's claims for inadequate medical care and violation of due process are

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DISMISSED for failure to state a claim upon which relief may be granted under

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section 1983; and

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The Clerk is DIRECTED to reflect the dismissal of defendants Tilton, Kernan, Yates,

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Igbinosa, Martinez, Hudson, Grannis, Garrison, Mendoza, Diaz, Silveira, and

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O’Brien on the Court's docket.

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IT IS SO ORDERED.

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Dated:
b9ed48

October 14, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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