Simmons v. CDCR et al

Filing 51

ORDER GRANTING Plaintiff's 48 Motion for Leave to Amend; ORDER DIRECTING Clerk to File Third Amended Complaint Submitted on December 19, 2014; ORDER DENYING Defendant CDCR's 38 Motion to Dismiss as Moot, signed by Magistrate Judge Gary S. Austin on 1/4/15. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER SIMMONS,

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Plaintiff,

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vs.
CDCR, et al.,

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Defendants.

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1:10-cv-00553-AWI-GSA-PC
ORDER GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND
(Doc. 48.)
ORDER DIRECTING CLERK TO FILE
THIRD AMENDED COMPLAINT
SUBMITTED ON DECEMBER 19,
2014
(Docs. 48-1, 48-2, 48-3.)
ORDER DENYING DEFENDANT
CDCR’S MOTION TO DISMISS AS
MOOT
(Doc. 38.)

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I.

BACKGROUND

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Christopher Simmons (“Plaintiff”) is a state prisoner proceeding with counsel in this

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civil rights action filed pursuant to Title V of the Americans with Disabilities Act of 1990

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(ADA), California’s Disabled Person Act (CDPA), and the Unruh Civil Rights Act (Unruh

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Act). This action was initiated by civil complaint filed by Plaintiff, proceeding pro se, in the

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Kern County Superior Court on December 17, 2009 (Case #S-1500-CV-269232, DRL). On

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March 29, 2010, defendant California Department of Corrections and Rehabilitation (CDCR)

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removed the case to federal court by filing a Notice of Removal of Action pursuant to 28
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U.S.C. § 1441(a)(1). (Doc. 1.) To date, no other defendant has made an appearance in this

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action. On June 30, 2014, Plaintiff acquired counsel. (Doc. 33.)

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This case now proceeds with the Second Amended Complaint, filed by Plaintiff on July

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21, 2014, against defendants CDCR, Anthony Hedgpeth, Robert Keldgord, Jonathan Akanno,

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D. Campas, and J. Covarrubias, for retaliating against Plaintiff for the exercise of his civil

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rights pursuant to the ADA.1 (Doc. 33.)

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On December 19, 2014, Plaintiff filed a motion for leave to amend the complaint and

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submitted a proposed Third Amended Complaint. (Docs. 48, 48-1, 48-2, 48-3.) On December

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30, 2014, defendant CDCR filed a statement of non-opposition to the motion. (Doc. 50.)

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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. Id. ARule 15(a) is very liberal and leave to amend >shall be freely

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given when justice so requires.=@ AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d

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1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant

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leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad

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faith; (3) produces an undue delay in the litigation; or (4) is futile.@ Id. The factor of A>[u]ndue

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delay by itself . . . is insufficient to justify denying a motion to amend.=@ Owens v. Kaiser

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Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade,

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198 F.3d 752, 757-58 (9th Cir. 1999)).

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Plaintiff’s motion is unopposed. Because defendant CDCR has consented in writing to

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Plaintiff’s amendment, the court finds no prejudice to the opposing party in allowing the

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amendment. Any delay in the litigation due to the amendment appears reasonable, and the

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court finds no evidence of bad faith or futility. Therefore, Plaintiff’s motion shall be granted,

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and the Clerk shall be directed to file the Third Amended Complaint.

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On December 16, 2014, the court issued an order dismissing defendant Kern Valley State
Prison from this action, without prejudice, on Plaintiff’s motion for voluntary dismissal. (Doc. 47.)
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DEFENDANT CDCR’S MOTION TO DISMISS

III.

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On October 2, 2014, defendant CDCR filed a motion to dismiss the Second Amended

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Complaint for failure to state a claim. (Doc. 38.) In light of the present order granting Plaintiff

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leave to file a Third Amended Complaint, the motion to dismiss is moot and shall be denied as

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such.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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GRANTED;
2.

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Plaintiff’s motion for leave to amend, filed on December 19, 2014, is

The Clerk is directed to FILE the Third Amended Complaint submitted to the
court on December 19, 2014; and

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Defendant CDCR’s motion to dismiss, filed on October 2, 2014, is DENIED as
moot.

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IT IS SO ORDERED.
Dated:

January 4, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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