Montanez v. Gonzalez et al

Filing 90

ORDER DENYING 79 Plaintiff's Motion to Amend Supplemental Amended Pleading signed by Magistrate Judge Barbara A. McAuliffe on 11/14/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL MONTANEZ,

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Plaintiff,
v.
F. GONZALEZ, et al.,

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Defendant.

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Case No.: 1:10-cv-01931-AWI-BAM (PC)
ORDER DENYING PLAINTIFF’S REQUEST TO
AMEND SUPPLEMENTAL AMENDED
PLEADING
(ECF No. 79)

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I.

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

Background

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in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first

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amended complaint against Defendant Grimm for deliberate indifference to medical needs in violation

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of the Eighth Amendment and medical malpractice under state law.

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On January 2, 2013, the Court issued a Discovery and Scheduling Order. Pursuant to that

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order, the deadline to amend the pleadings in this action was July 2, 2013. (ECF No. 59.) On July 5,

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2013, Plaintiff filed a motion to amend his complaint, which was dated June 24, 2013, and considered

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timely. (ECF No. 68.) On November 14, 2013, the Court granted Plaintiff’s motion to amend and

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directed the Clerk of the Court to file Plaintiff’s third amended complaint lodged on July 5, 2013.

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(ECF No. 69.)
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However, before the Court ruled on that motion, Plaintiff filed the instant motion requesting to

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supplement his proposed third amended complaint to add a due process claim against two new

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defendants, P. Heide and the California Correctional Institution, and against Defendant Grimm. (ECF

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No. 79.) Plaintiff also lodged a proposed third amended complaint. (ECF No. 80.) On November 6,

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2013, Defendant Grimm filed an opposition to Plaintiff’s motion requesting to supplement his third

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amended complaint. (ECF No. 82.) The Court finds a reply unnecessary and the motion is deemed

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submitted. Local Rule 230(l).

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II.

Discussion

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As Plaintiff filed the instant request to amend after the deadline established in the scheduling

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order for amending pleadings had expired, the Court must apply the standard for amending a

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scheduling order under Federal Rule of Civil Procedure 16, rather than the liberal amendment

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standards of Rule 15.

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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the

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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the

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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot reasonably be

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met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the

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inquiry should end. Id.

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Here, Plaintiff has not demonstrated diligence in seeking the proposed amendment. According

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to his moving papers, Plaintiff discovered the proposed due process claim when he was provided

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information by Defendant Grimm in response to his Request for Interrogatories, Sets One and Two.

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(ECF No. 79, p. 2.) Defendant Grimm served his responses to the two sets of interrogatories on July

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2, 2013, and August 8, 2013, respectively. (Ex. G and H to ECF No. 80.) Despite receiving the

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responses in July and August, Plaintiff waited until mid-October to seek the proposed amendment.

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Plaintiff provides no explanation for the delay. Further, it appears that Plaintiff’s proposed due

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process claim is based on the same underlying events alleged in his deliberate indifference claim.

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Plaintiff does not explain why did not seek to add the due process claim when he originally brought

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this action or when he sought leave to amend in July 2013.
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Even if the Court concluded that Plaintiff diligently sought to extend the deadline to amend his

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complaint, Plaintiff’s proposed due process claim would not be allowed to proceed under the liberal

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amendment standard of Federal Rule of Civil Procedure 15.
“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”

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Amerisource Bergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.

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Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices

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the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is

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futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient to justify denying a motion to

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amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712,13 (9th Cir. 2001)

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(quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).
In this instance, Plaintiff’s due process claim is futile because it is premised on violations of

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the process for review of his inmate appeal/grievance. (ECF No. 80, pp. 19-23.) Plaintiff has no

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constitutionally protected interest in the manner in which prison officials process his administrative

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grievances. “[A prison] grievance procedure is a procedural right only, it does not confer any

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substantive right upon the inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993) (citing

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Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill.1982)); see also Ramirez v. Galaza, 334 F.3d 850,

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860 (9th Cir.2003) (no due process liberty interest in processing of appeals because no entitlement to a

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specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (existence of

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grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th

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Cir.1988). “Hence, it does not give rise to a protected liberty interest requiring the procedural

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protections envisioned by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F.Supp. at 10;

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Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo.1986) (failure to follow grievance procedure does

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not give rise to a section 1983 claim).
Since Plaintiff has no protected liberty interest in the prison grievance procedure, Plaintiff’s

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allegations that Defendant Grimm and the proposed defendants failed to comply with the procedure do

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not rise to the level of a due process violation and are not actionable under section 1983. Accordingly,

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Plaintiff’s proposed amendment is futile.

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III.

Conclusion and Order

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Based on the above, Plaintiff’s request to amend the supplemental amended pleading is

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DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

November 14, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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