Rodriguez v. Isaac

Filing 33

ORDER denying 22 Motion to Amend the Complaint signed by Magistrate Judge Gary S. Austin on 7/27/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NOEL RODRIGUEZ,

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Plaintiff,

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vs.

1:11-cv-01914-AWI-GSA (PC)
ORDER DENYING MOTION FOR
LEAVE TO AMEND
(ECF No. 22.)

ISAAC,

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Defendant.

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I.

BACKGROUND

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Noel Rodriguez (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. § 1983. On November 17, 2011, Plaintiff filed the Complaint

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commencing this action. (ECF No. 1.) This case now proceeds on Plaintiff’s Second Amended

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Complaint, filed on May 22, 2014, against defendant Isaac for failure to protect Plaintiff, in

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violation of the Eighth Amendment. (ECF No. 15.)

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On June 29, 2015, Plaintiff filed a motion for leave to amend the complaint. (ECF No.

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22.) On July 10, 2015, Defendant filed an opposition to the motion. (ECF No. 29.)

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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, and leave shall be freely given when justice so requires. Id.

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Because Plaintiff has already amended the complaint twice, and he does not have Defendant’s

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consent to amend, Plaintiff requires leave of court to file a Third Amended Complaint.

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ARule 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., 445 F.3d 1132, 1136 (9th Cir.

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2006) (quoting Fed. R. Civ. P. 15(a)). However, courts Aneed not grant leave to amend where

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the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an

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

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insufficient to justify denying a motion to amend.=@ Owens v. Kaiser Foundation Health Plan,

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Inc., 244 F.3d 708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58

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(9th Cir. 1999)).

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Discussion

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Plaintiff seeks to amend the complaint to add evidence of exhaustion of his

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administrative remedies. Defendant argues that such amendment would be futile because

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Plaintiff is not required to affirmatively plead exhaustion, and exhaustion is not presently at

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issue in this case. Defendant also argues that such amendment would be futile to cure the

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arguments in their motion to dismiss.

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Defendant’s arguments have merit. Plaintiff is not required to provide evidence in the

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complaint that he exhausted his administrative remedies. While Plaintiff is required to exhaust

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his available administrative remedies before filing suit, McKinney v. Carey, 311 F.3d 1198,

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1199 (9th Cir. 2002), the provision of the Prison Litigation Reform Act requiring exhaustion

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does not impose a pleading requirement, but rather creates a defense, and Defendant has the

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burden of raising and proving the absence of exhaustion. 42 U.S.C. § 1997(e(a); Jones v. Bock,

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549 U.S. 199, 211, 127 S.Ct. 910, 918-19 (2007). In the Second Amended Complaint, Plaintiff

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asserts that “[p]rison officials failed to respond or exhaust 602 complaints.” (ECF 15 at 2 ¶II.)

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This statement is sufficient at this stage of the proceedings, and allowing Plaintiff to amend the

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complaint to add additional information concerning exhaustion of remedies would cause undue
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delay in the litigation, prejudicing Defendant. If Plaintiff is permitted to file a Third Amended

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Complaint, Defendant will be required to prepare and file another responsive pleading.1

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Further, the amendment sought by Plaintiff would be futile to cure the res judicata and

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collateral estoppel issues upon which Defendant’s motion to dismiss is based.

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Based on the foregoing, the court finds that granting leave for Plaintiff to amend the

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complaint at this juncture would be futile, would only cause undue delay in the litigation, and

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would prejudice Defendant. Therefore, Plaintiff’s motion for leave to amend shall be denied.

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IV.

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CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for leave to amend,

filed on June 29, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

July 27, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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On June 30, 2015, Defendant filed a Motion to Dismiss based on the doctrines of res judicata
and collateral estoppel, in response to the Second Amended Complaint. (ECF No. 23.)
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