Branch v. Grannis, et al.,

Filing 68

ORDER Denying Plaintiff's 60 Motion for Leave to Amend the Complaint signed by Magistrate Judge Gary S. Austin on 04/20/2012. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS BRANCH,

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Plaintiff,

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1:08-cv-01655-AWI-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO AMEND THE COMPLAINT
(Doc. 60.)

v.
D. UMPHENOUR, et al.,

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Defendants.
/

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I.

RELEVANT PROCEDURAL HISTORY

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Louis Branch (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on July 7, 2008. (Doc. 1.) On May 11, 2009, Plaintiff filed the First Amended Complaint,

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and on August 25, 2010, Plaintiff filed the Second Amended Complaint (“2ACP”). (Docs. 13, 26.)

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The Court screened the 2ACP and issued an order on May 11, 2011, dismissing defendants

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Grannis, Mendoza-Powers, and Mancinas, with prejudice, based upon Plaintiff’s failure to state a

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cognizable claim against them. (Doc. 29.) Plaintiff’s claims against all of the defendants in their

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official capacity were dismissed, and his claims for declaratory and injunctive relief were dismissed,

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for failure to state a claim. Id. This case now proceeds on the 2ACP against defendants Umphenour

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and Does 1 and 2, for failure to protect Plaintiff, in violation of the Eighth Amendment, and against

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defendant Umphenour for retaliation in violation of the First Amendment, in their individual
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capacities, for money damages only. Id. On October 6, 2011, defendant Umphenour filed a motion

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to dismiss. (Doc. 49.) Plaintiff has not sufficiently identified the Doe defendants to enable service

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of process upon them.

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On November 22, 2011, Plaintiff filed a motion to file a Third Amended Complaint

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(“3ACP”) and lodged a proposed 3ACP. (Docs. 60, 61.) Defendants have not filed a response to

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the motion. Plaintiff’s motion for leave to amend is now before the Court.

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II.

MOTION TO AMEND – RULE 15

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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, defendant

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Umphenour filed a motion to dismiss on October 6, 2011, and none of the defendants have consented

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to amendment. Therefore, Plaintiff may not amend the 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., 465 F.3d 946, 951 (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. “[R]equests for leave [to amend] should be granted with

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‘extreme liberality,’ “ particularly when a complaint was filed before Twombly1 and fails for lack

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of sufficient factual content. Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir.2009). However,

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a party is not entitled to an opportunity to amend his complaint if any potential amendment would

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be futile. See, e.g., May Dep't Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980).

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Plaintiff requests leave to file a 3ACP to restore two of the defendants dismissed by the

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Court, S. Mendoza-Powers and A. Mancinas. Plaintiff contends that when he filed the 2ACP, he had

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not read the opinions in Ashcroft v. Iqbal2 or Twombly and “therefore lacked the requisite

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

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Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

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knowledge and skill to properly identify the elements to sufficiently establish the culpability of the

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two defendants plaintiff is requesting to add.” (Motion, Doc. 60 ¶2.) Plaintiff also states that he

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expects to obtain information to include the proper names of defendants Does 1 and 2 in the 3ACP.

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(Id. ¶3.)

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Plaintiff’s argument that he was not aware of the pleading standards discussed in Ashcroft

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or Twombly when he filed the 2ACP is unpersuasive, as Plaintiff commenced this action on July 7,

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2008, after the Twombly opinion was available, and the Court discussed Ashcroft and Twombly in

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the screening order of June 28, 2010, before Plaintiff filed the 2ACP. (Screening Order, Doc. 21 ¶I.)

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Nonetheless, the Court has reviewed the proposed 3ACP in light of the current pleading standards,

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with respect to Plaintiff’s allegations against defendants Mendoza-Powers and Macinas.

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Because the Court dismissed defendants Mendoza-Powers and Macinas from this action, with

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prejudice, in its order of May 11, 2011, Plaintiff’s motion for leave to amend requires the Court to

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consider whether Plaintiff has shown cause for the Court to reconsider the order. “A motion for

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reconsideration should not be granted, absent highly unusual circumstances, unless the district court

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is presented with newly discovered evidence, committed clear error, or if there is an intervening

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change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted, and “[a] party seeking

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reconsideration must show more than a disagreement with the Court’s decision, and recapitulation

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. . . ” of that which was already considered by the Court in rendering its decision,” U.S. v. Westlands

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Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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The Court finds Plaintiff’s allegations against defendants Mendoza-Powers and Macinas in

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the proposed 3ACP to be essentially the same as the allegations in the 2ACP. While Plaintiff

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emphasizes in the 3ACP that he feared for his safety and notified defendants Mendoza-Powers and

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Mancinas of this fact, Plaintiff’s claims in the 3ACP suffer from the same deficiencies found by the

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Court in the 2ACP. With respect to Plaintiff’s claim for retaliation under the First Amendment,

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Plaintiff has not set forth more than his speculation that the reason that defendants Mendoza-Powers

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and Mancinas acted against him or failed to act was because of Plaintiff’s protected conduct. Thus,

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Plaintiff fails to state a retaliation claim against those two defendants. With respect to Plaintiff’s
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failure to protect claim under the Eighth Amendment, Plaintiff has not established that defendants

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Mendoza-Powers and Mancinas were aware of a substantial risk of harm to Plaintiff. Plaintiff fails

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to state what was contained in the formal written notice he sent to these defendants other than his

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complaint that the transfer to Avenal State Prison was illegal or inappropriate and he was afraid

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because of the previous alleged retaliatory transfer to the Correctional Training Facility by Defendant

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Mancinas. Plaintiff has not alleged that defendant Mendoza-Powers or defendant Mancinas were

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in any way involved in the attack upon Plaintiff or were present and failed to act during the incident

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at issue in this action. Thus, Plaintiff fails to state a claim against defendants Mendoza-Powers and

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Mancinas for failure to protect him. Plaintiff also attempts to bring a due process claim under the

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Fourteenth Amendment against defendants Mendoza-Powers and Mancinas for their failure to

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protect him. As the Court advised Plaintiff in its order of May 11, 2011, in this case, the First and

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Eighth Amendments rather than the Due Process Clause of the Fourteenth Amendment govern

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Plaintiff’s claims. Therefore, Plaintiff fails to state a due process claim against the defendants.

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Based on this analysis, Plaintiff has not demonstrated that the Court committed clear error, or

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presented the Court with new information of a strongly convincing nature, to induce the Court to

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reverse its prior decision dismissing defendants Mendoza-Powers and Mancinas from this action

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with prejudice.

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With regard to Plaintiff’s stated intention to identify defendants Does 1 and 2 by name if

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granted leave to amend, he has not done so in the 3ACP. The proposed 3ACP continues to refer

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these defendants only as Does 1 and 2 and not by proper name or any other specific identification

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not contained in the 2ACP.

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The Court finds that Plaintiff’s proposed 3ACP does not succeed at stating any claims against

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defendants Mendoza-Powers and Mancinas. Therefore, it would be futile to allow Plaintiff to file

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the 3ACP to restore these two defendants which the Court previously dismissed from this action

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based on Plaintiff’s failure to state a claim. Accordingly, Plaintiff’s motion to amend shall be

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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, filed on November 22, 2011, is DENIED.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 20, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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