Ahdom v. Lopez et al

Filing 26

ORDER STRIKING Plaintiff's Motion to Amend 21 ; ORDER DENYING Plaintiff's Motions to Amend and DISREGARDING The Second Amended Complaint 20 , 24 , 25 , signed by Magistrate Judge Barbara A. McAuliffe on 1/12/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BILAL AHDOM,

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CASE NO. 1:09-cv-01874-AWI-BAM PC
Plaintiff,

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v.

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ORDER STRIKING PLAINTIFF’S MOTION TO
AMEND (ECF No. 21)

S. LOPEZ, et al.,

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ORDER DENYING PLAINTIFF’S MOTIONS TO
AMEND AND DISREGARDING THE SECOND
AMENDED COMPLAINT
Defendants.
(ECF Nos. 20, 24, 25)

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Plaintiff Bilal Ahdom (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. § 1983. On October 17, 2011, findings and

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recommendations issued recommending that this action proceed against Defendants Araich, Chen,

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Shittu, Ashby, Lopez, Spaeth, Doe One, Two, and Three for failure to provide adequate pain

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medication and Defendants Schaefer and Shittu for failing to grant Plaintiff’s request for a lower tier

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accommodation in violation of the Eighth Amendment. Since Plaintiff had previously been notified

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of the deficiencies in his complaint and been granted leave to amend, the findings and

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recommendation recommended that the remaining Eighth Amendment claims and defendants be

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dismissed from this action for Plaintiff’s failure to state a cognizable claim. Plaintiff was granted

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thirty days in which to file objections to the findings and recommendations. On November 7, 2011,

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Plaintiff filed a motion for a thirty day extension of time to file objections, which was granted on

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November 8, 2011. However, no objections have been filed.

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Plaintiff filed a motion to amend on November 16, 2011. On December 21, 2011, Plaintiff
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filed a motion to amend and a second amended complaint was lodged. On January 3, 2012, Plaintiff

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filed a motion to amend the complaint, a second amended complaint, and a request for judicial notice

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that his prior motion contained an incorrect case number.

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Initially, the Court shall order Plaintiff’s motion to amend, filed November 16, 2011, denied

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as it did not include the amended complaint. The motion to amend, filed December 21, 2011, which

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included an incorrect case number shall be stricken from the record.

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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 instance Plaintiff has

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already filed an amended complaint so he may amend only with leave of the court or by written

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consent of the adverse party.

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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.’” Amerisource Bergen 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. 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)).

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In his motion to amend Plaintiff states that he is seeking to amend the first amended

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complaint due to facts that were not available to him when it was filed, because he has obtained

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evidence due to his medical Olsen Review. The Court has conducted a comparison of the first

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amended and second amended complaints.

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In the second amended complaint the size of Plaintiff’s incision has been changed from eight

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inches to nine inches and he states that he was given antibiotics from May 1 to 4 while he was in the

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hospital. (Second Amended Complaint ¶ 26.) Other than these two facts, the additional allegations

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in the complaint are all information that Plaintiff would have been aware of at the time that he filed

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his complaint and therefore were not newly discovered evidence as he claims in his motion to
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amend. However, it is not the additions to the complaint, but the deletions that the Court finds

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warrant discussion.

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In the second amended complaint Plaintiff sets forth the occasions that he was seen by

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different medical defendants. In each instance he states that they refused to address his pain, treat

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his medical conditions, and address his accommodation requests. However the Court notes the

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following allegations that were included in the first amended complaint, but are missing from the

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second amended complaint.

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On May27, 2008, Defendant Araich “ordered Tramadol for pain management. . . . (First

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Amended Complaint ¶ 31, ECF No. 13.) On September 11, 2008, Defendant Chen denied Plaintiff’s

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request for accommodations because “he saw Plaintiff allegedly carrying a box heavier than the

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authorized 10 lbs. without any assistance.” (Id. at ¶ 39.) On October 6, 2008, Defendant Shittu

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“ordered crushed codeine tabs. . . .” (Id. at ¶ 46.) On October 21, 2008, Defendant Shaeffer

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“prescribed a neuro pain med (Gabapentin) 4 times daily. . . .” (Id. at ¶¶ 49, 50.) On October 30,

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2008, Defendant Schaeffer “sent Plaintiff to the Delano Emergency Room for possible blood clots

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in his calve above the Achilles. [Defendant] Schaeffer ordered codeine for pain. . . .” (Id. at ¶ 56.)

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On November 10, 2008, Defendant Schaeffer “increased Plaintiff’s Tramadol and Gabapentin meds,

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and she said she would schedule Plaintiff for epidural shots.” (Id. at ¶ 58.) On December 5, 2008,

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Defendant Schaeffer “prescribed 5mg [sic] Methadone and increased Gabapentin to 900mg [sic].”

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(Id. at ¶ 64.)

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Based on the comparison of the first and second amended complaint, the Court finds that

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Plaintiff’s motion has been brought in bad faith in an attempt to avoid the findings set forth in the

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findings and recommendations issued October 17, 2011. Since the Court finds that the amendment

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is being sought in bad faith the motion to amend shall be denied. Amerisource Bergen Corp., 465

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F.3d at 951. Plaintiff is advised that any future similar conduct will result in the issuance of

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sanctions, up to and including dismissal of this action.

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion to amend, filed November 16, 2011, is DENIED;

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Plaintiff’s motion to amend, filed December 21, 2011, is STRICKEN FROM THE
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RECORD;

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Plaintiff’s motion to amend, filed January 3, 2012 is DENIED; and

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Plaintiff’s second amended complaint, filed January 3, 2012, is DISREGARDED.

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IT IS SO ORDERED.
Dated:
10c20k

January 12, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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