Percival v. Clark et al

Filing 36

ORDER DENYING 29 Motion to Amend the Complaint, signed by Magistrate Judge Michael J. Seng on 06/13/2012. (Martin-Gill, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

LARRY JOE PERCIVAL,

11

CASE NO.

Plaintiff,

12

1:09-cv-01699-MJS (PC)

ORDER DENYING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT

v.
(ECF No. 29)

13
SGT. J. NAIL, et al.,
14
Defendants.

15

/

16
17
18

I.

PROCEDURAL HISTORY

19

On September 28, 2009, Plaintiff Larry Joe Percival, a state prisoner proceeding pro

20

se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF

21

No. 1.) Plaintiff consented to Magistrate Judge jurisdiction on November 19, 2010. (ECF

22

No. 13.) Defendant Nail consented to Magistrate Judge jurisdiction on March 28, 2012.

23

(ECF No. 35.)

24
25
26

Prior to initial screening, the Court granted Plaintiff’s Motion to Amend his
Complaint. (ECF. No. 16.) Plaintiff’s First Amended Complaint, filed January 13, 2011

27
1

1

(ECF No. 17), was screened and dismissed with leave to amend (ECF No. 18). His

2

Second Amended Complaint, filed March 18, 2011 (ECF No. 19), was similarly screened

3

and dismissed with leave to amend (ECF No. 20). Plaintiff’s Third Amended Complaint,

4
5

was filed on April 15, 2011. (ECF No. 21.) On September 1, 2011, the Court screened

6

Plaintiff’s Third Amended Complaint and found that it stated a cognizable claim against

7

Defendant Nail for violating Plaintiff’s First Amendment rights by allegedly conducting a

8

retaliatory cell search and planting contraband in his cell. (ECF No. 22.) The Court

9

dismissed all other claims and Defendants. (Id.) Defendant Nail has since been served

10

and filed an Answer. (ECF Nos. 26 & 30.)

11
On January 3, 2012, Plaintiff filed a motion to further amend the Third Amended

12
13

Complaint. (ECF No. 29.) Plaintiff wishes to amend his Third Amended Complaint to sue

14

Defendant Nail in his individual and official capacity. (Id.) Defendant Nail has not filed any

15

objections to Plaintiff’s motion. Plaintiff’s motion is now before the Court.

16

II.

17

LEGAL STANDARD
Plaintiff has amended once as a matter of course and therefore, he must obtain

18
19

leave of court to amend. Fed. R. Civ. P. 15(a). Rule 15 provides that “courts should freely

20

give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Public policy strongly

21

encourages courts to permit amendments and the policy favoring leave to amend is applied

22

with extreme liberality. Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008) (quotation marks

23

omitted); also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003);

24

Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001); Morongo

25
Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
26
27

In determining whether to grant leave to amend, courts generally consider four
2

1

factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility

2

of amendment. In re Korean Airlines Co., Ltd., 642 F.3d 685, 701 (9th Cir. 2011) (citing

3

Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)) (quotation marks omitted); also

4
5

Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962); Waldrip, 548 F.3d at 732;

6

AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006);

7

Eminence Capital, LLC, 316 F.3d at 1052. Prejudice to the opposing party carries the

8

greatest weight, and absent prejudice, or a strong showing of any of the remaining factors,

9

there exists a presumption in favor of granting leave to amend. Eminence Capital, LLC,

10

316 F.3d at 1052 (quotation marks omitted).

11
12

III.

FUTILITY OF AMENDMENT

13

It is well-established that the Court may deny leave to amend if amendment would

14

be futile. Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011); Serra v. Lapin, 600 F.3d

15

1191, 1200 (9th Cir. 2010); Gardner v. Martino, 563 F.3d 981, 990-92 (9th Cir. 2009);

16

Deveraturda v. Globe Aviation Security Services, 454 F.3d 1043, 1046 (9th Cir. 2006);

17

Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061

18
19

(9th Cir. 2004); Saul v. U.S., 928 F.2d 829, 843 (9th Cir. 1991). Evaluating whether a

20

proposed amendment is futile requires the Court to determine whether the amendment

21

would withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and

22

in making this evaluation, the Court is confined to review of the proposed amended

23

pleading. Nordyke, 644 F.3d at 788 n.12 (citing Miller v. Rykoff-Sexton, Inc., 845 F.2d

24

209, 214 (9th Cir. 1988) and Ashcroft v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1949

25
(2009)).
26
27

Here, Plaintiff asks that he be allowed to amend his Third Amended Complaint so
3

1

that he can bring suit against Defendant Nail in his individual and official capacity, rather

2

than solely in his individual capacity. However, amendment would be futile. Plaintiff has

3

brought this suit against Defendant Nail under 42 U.S.C. § 1983 and has prayed for

4
5

monetary damages only.

Because “[a] state and its officials acting in their official

6

capacities are not considered ‘persons' within the meaning of § 1983,” they cannot be held

7

liable under the statute for money damages. Bank of Lake Tahoe v. Bank of Amer., 318

8

F.3d 914, 918 (9th Cir. 2003) (citing Lapides v. Bd. of Regents of Univ. Sys. of Georgia,

9

535 U.S. 613, 617 (2002)). Thus, Plaintiff does not have any viable claims for monetary

10

relief against Defendant Nail, as a state actor, in his official capacity. Plaintiff’s efforts to

11
12

amend his Third Amended Complaint to bring suit against Defendant Nail in his official

13

capacity would be futile. Thus his motion should be denied.

14

IV.

CONCLUSION AND ORDER

15

For the reasons set forth herein, the Court finds that Plaintiff’s proposed amendment

16

is futile. Plaintiff’s motion to amend will be denied and this action shall continue on the

17

Third Amended Complaint.

18
Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to amend, filed on

19
20

January 3, 2012, is DENIED.

21
22

IT IS SO ORDERED.

23
24

Dated:
ci4d6

June 13, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

25
26
27
4