Bejarano v. Allison et al
Filing
108
ORDER Denying 102 Plaintiff's Motion to Amend the Complaint, signed by Magistrate Judge Dennis L. Beck on 3/11/16. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BOB BEJARANO,
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Plaintiff,
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Case No. 1:11-cv-00589 LJO DLB PC
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND COMPLAINT
v.
(Document 102)
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ALLISON, et al.,
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Defendants.
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Plaintiff Bob Bejarano (“Plaintiff”) is a California state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on
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April 12, 2011, and it now proceeds on Plaintiff’s February 8, 2012, Second Amended Complaint
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against Defendants M. Bejarano and O. Best for retaliation in violation of the First Amendment.
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Plaintiff filed the instant motion to amend on January 29, 2015. Defendants opposed the
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motion on February 16, 2016. Plaintiff did not file a reply and the motion is therefore ready for
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decision pursuant to Local Rule 230(l).
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A.
On June 28, 2012, the Court determined that Plaintiff’s February 8, 2012, Second Amended
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PROCEDURAL HISTORY
Complaint stated a retaliation claim against Defendants Bejarano and Best.
On February 19, 2013, Defendants filed an unenumerated Rule 12(b) motion based on failure
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to exhaust. The Court granted the motion on August 20, 2013, and dismissed Plaintiff’s claims
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without prejudice.
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Plaintiff appealed the dismissal. On August 3, 2015, the Ninth Circuit vacated and remanded
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this Court’s dismissal because at the time this Court granted the motion to dismiss in 2013, it did not
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have the benefit of the Ninth Circuit’s 2014 decision in Albino v. Baca. The Ninth Circuit remanded
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the case so that the exhaustion question could be determined on summary judgment, as required by
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Albino.
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Therefore, on August 28, 2015, the Court vacated the judgment and ordered Defendants to
file a response.
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Defendants filed their answer on September 28, 2015, and the Court issued a Discovery and
Scheduling Order on September 29, 2015.
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On December 16, 2015, Defendants filed a motion for summary judgment based on
exhaustion.
The Court granted Defendants’ motion to stay discovery on December 17, 2016, and stayed
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non-merits based discovery.
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The Court has granted Plaintiff three extensions of time to oppose the motion. His
opposition is currently due on or about March 21, 2016.
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On January 29, 2016, Plaintiff filed the instant motion to amend.
B.
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ALLEGATIONS IN SECOND AMENDED COMPLAINT
Plaintiff is currently incarcerated at California State Prison- Sacramento. The events at issue
occurred while he was incarcerated at the California Substance Abuse Treatment Facility.
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Plaintiff alleges that he was placed on contraband surveillance watch (“CSW”) from
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February 17, 2010, through February 20, 2010. Plaintiff told Defendants Best and Bejarano that he
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was “going to grievance them for harassing him” and placing him on CSW based on a mere
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suspicion. ECF No. 27, at 5. Plaintiff was released from the CSW with negative results.
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Plaintiff filed his grievance on March 9, 2010.
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Plaintiff alleges that Defendants retaliated against him by placing him on CSW for a second
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time from April 13, 2010, through April 16, 2010. He was released with negative results.
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C.
LEGAL STANDARD
“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.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the
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futility factor, a plaintiff may not bring unrelated claims against unrelated parties in a single action.
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Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007).
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D.
DISCUSSION
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1.
Proposed Amendments
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Plaintiff did not submit a proposed Third Amended Complaint with his motion, though it
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appears that he seeks to add three new Defendants to his retaliation claim- Defendants W. Jones, F.
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Vasquez and B. Odle. He alleges that Defendant Odle signed off on Plaintiff’s February 17, 2010,
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CSW placement and “knowingly and intentionally placed Plaintiff without following proper
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procedures of CSW.” ECF No. 102, at 2. Defendants Jones and Vasquez signed and approved
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Plaintiff’s April 13, 2010, placement in CSW, “knowingly and intentionally for a retaliation and in
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violation of Plaintiff’s constitutional rights…without following proper procedures on CSW.” ECF
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No. 102, at 2.
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2.
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Plaintiff first fails to explain why he could not have brought these claims sooner. While he
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filed this motion within the time for amending set forth in the Scheduling and Discovery order, he
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provides no explanation why he waited almost five years after filing his original complaint to move
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to amend.1 Without any explanation, Plaintiff cannot avoid a finding of undue delay.
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Analysis
Second, allowing an amendment at this late date would be severely prejudicial to Defendants.
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This case has been pending since April 2011, and it is now proceeding on Plaintiff’s February 8,
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2012, Second Amended Complaint. Based on the allegations in that complaint, Defendants Best and
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The Discovery and Scheduling Order set January 27, 2016, as the deadline to amend. Plaintiff signed and mailed this
motion on January 26, 2016.
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Bejarano were successful on an exhaustion challenge, though the action was ultimately remanded
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back to this Court for procedural reasons. That remand led to further time spent in converting the
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exhaustion challenge into a motion for summary judgment, which Defendants filed on December 16,
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2015. The motion is pending, and Plaintiff has not yet filed an opposition. Perhaps hoping to
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continue this action after the disposition of the motion, Plaintiff now asks to add new Defendants.
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However, allowing new claims against new Defendants years later, and after a remand to consider
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the exhaustion issue on a motion for summary judgment, would be prejudicial to Defendants given
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the time and effort spent defending this action. AmerisourceBergen Corp., 465 F.3d at 951-54
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(prejudice existed where potentially high, additional litigation costs would result from delayed
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amendment).
Third, Plaintiff’s amendments appear futile. Setting aside the fact that Defendant Vasquez
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was already dismissed from this action on screening, Plaintiff’s allegations do not support a
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retaliation claim. Defendants may have been involved in approving his CSW, but Plaintiff does not
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connect their action to any protected conduct. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
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2005). Whether they followed procedures or not does not, alone, suggest that they acted in a
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retaliatory manner.
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For these reasons, Plaintiff’s motion to amend is DENIED.
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IT IS SO ORDERED.
Dated:
/s/ Dennis
March 11, 2016
L. Beck
UNITED STATES MAGISTRATE JUDGE
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