Gamez v. Gonzalez, et al.

Filing 183

ORDER DENYING 180 Plaintiff's Motion to Amend and to Conduct Further Discovery signed by Magistrate Judge Gary S. Austin on 1/13/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER DENYING PLAINTIFF’S
MOTION TO AMEND AND TO
CONDUCT FURTHER DISCOVERY
(Doc. 180.)

Plaintiff,

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1:08-cv-01113-LJO-GSA-PC

SERGIO ALEJANDRO GAMEZ,

vs.
F. GONZALEZ, et al.,

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Defendants.

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I.

BACKGROUND

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Sergio Alejandro Gamez (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed this action on

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August 1, 2008. (Doc. 1.) This action now proceeds on the Fourth Amended Complaint filed

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by Plaintiff on November 8, 2013, against defendants K. Holland (Warden), F. Gonzalez

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(Former Warden), J. Tyree (Institutional Gang Investigator (IGI)), J. Gentry (Former IGI), D.

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Adame (Assistant IGI), and D. Jakabosky (Special Services Unit (SSU) Special Agent)

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(“Defendants”) for due process violations, and for retaliation against Plaintiff in violation of the

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First Amendment. (Doc. 147.)

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On May 9, 2014, the Court issued an Amended Scheduling Order establishing a

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deadline of January 9, 2015, for the parties to complete discovery, including the filing of

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motions to compel. (Doc. 167.) The discovery deadline has now expired.
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On December 15, 2014, Plaintiff filed a motion to amend the complaint and to conduct

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further discovery. (Doc. 180.) On December 31, 2014, Defendants filed an opposition to the

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motion. (Doc. 182.) Plaintiff has not filed a reply.

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II.

LEAVE TO AMEND – RULE 15(a)

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

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party=s pleading once as a matter of course at any time before a responsive pleading is served.

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Fed. R. Civ. P. 15(a). Otherwise, a party may amend only by leave of the court or by written

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consent of the adverse party, and leave shall be freely given when justice so requires. Id.

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ARule 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.

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2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant leave to amend where

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

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undue delay in the litigation; or (4) is futile.@ Id. The factor of A>[u]ndue delay by itself . . . is

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insufficient to justify denying a motion to amend.=@ Owens v. Kaiser Foundation Health Plan,

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Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58

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(9th Cir. 1999)). Because Plaintiff has previously amended the complaint, and he does not

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have Defendants’ consent to amend, Plaintiff requires leave of court to file a Fifth Amended

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Complaint.

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Plaintiff’s Motion

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Plaintiff seeks to amend the complaint to add two defendants, Lieutenant (Lt.) Edgar

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Coontz and Board of Parole Hearings (BPH) Commissioner Ali Zarrinnam, and to conduct

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further discovery against them. Plaintiff alleges that on February 6, 2013, at Plaintiff’s tenth

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parole consideration hearing at CCI, Lt. Coontz testified under oath that per confidential

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memorandum dated September 7, 2012 by the IGI, Plaintiff was in direct contact with an

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influential Mexican Mafia member in Pelican Bay State Prison. Plaintiff asserts that this is an

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unsupported damaging claim against him.

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Zarrinnam noted at the hearing that Lt. Coontz and Warden Holland brought to his attention

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that Plaintiff was going to be restrained.

Plaintiff also alleges that BPH Commissioner

Plaintiff asserts that these two defendants are
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indispensable parties under Rule 19 of the Federal Rules of Civil Procedure. Plaintiff alleges

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that Lt. Coontz acquired information for his testimony from defendants Tyree and Adame, in

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further retaliation against Plaintiff for his legal activities. Plaintiff requests leave to add

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defendants Coontz and Zarrinnam to his retaliation claim and to conduct further discovery.

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Defendants argue that the two defendants Plaintiff seeks to add to the complaint are not

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required indispensable parties because they do not fall within any of the three categories

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addressed in Rule 19(a)(i).

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“required parties”: (1) persons need to accord complete relief to the existing parties; (2) persons

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whose interests will be practically impaired or impeded if not joined; and (3) persons who are

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needed to make sure that the existing parties are not exposed to multiple or inconsistent

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obligations. Fed R. Civ. P. 19(a)(i). Defendants argue that Zarrinnam and Coontz are not

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needed to accord complete relief to the existing parties, and categories (2) and (3) are not

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applicable because no existing defendant has raised these issues.

Rule 19(a)(i) sets forth three categories of persons who are

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Discussion

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The court finds that it would be futile for Plaintiff to add Lt. Coontz and Commissioner

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Zarrinnum to the complaint for this action. Plaintiff has not alleged facts sufficient to state a

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cognizable retaliation claim against Lt. Coontz or Commissioner Zarrinnam. “Within the

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prison context, a viable claim of First Amendment retaliation entails five basic elements: (1)

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An assertion that a state actor took some adverse action against an inmate (2) because of (3)

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that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his

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First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter,

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668 F.3d 1108, 1114-15 (9th Cir. 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

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2009). Plaintiff has not shown a causal connection between adverse actions by Lt. Coontz and

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Commissioner Zarrinnam and Plaintiff’s legal activities, nor has Plaintiff alleged that the

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adverse actions did not reasonably advance a legitimate correctional goal. Therefore, it would

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be futile to allow Plaintiff to amend the complaint to add these two defendants for retaliation

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against Plaintiff. Accordingly, Plaintiff’s motion to amend and to conduct further discovery

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shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for leave to

amend the complaint and to conduct further discovery is DENIED.

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IT IS SO ORDERED.
Dated:

January 13, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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