Bell v. Heberling et al

Filing 102

ORDER DENYING 70 Motion to Amend the Complaint, signed by Magistrate Judge Stanley A. Boone on 05/13/2015. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HORACE THOMAS,

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Plaintiff,

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v.
S HEBERLING, et al.,

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Defendants.

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Case No.: 1:12-cv-01248-AWI-SAB (PC)
ORDER DENYING PLAINTIFF‟S MOTION
TO AMEND COMPLAINT
[ECF No. 70]

Plaintiff Horace Bell is appearing pro se in this civil rights action pursuant to 42 U.S.C. §

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1983.
On March 4, 2015, Plaintiff filed a motion to amend the complaint, along which a proposed

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amended complaint which was lodged.1 (ECF Nos. 70, 71.) Defendants filed an opposition on March

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25, 2015, and Plaintiff filed a reply on April 1, 2015. (ECF Nos. 77, 83.)
This action is proceeding on Plaintiff‟s first amended complaint, filed November 20, 2013,

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against Defendants S. Heberling, J. Sheer, and E. Nesmith for a violation of the Eighth Amendment by

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telling gang members to attack Plaintiff. Defendants filed an answer to Plaintiff‟s first amended

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complaint on January 8, 2015. (ECF No. 52.)

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On March 26, 2015, Plaintiff filed a notice of appeal relating to the denial of his request for a preliminary injunction with
the United States Court of Appeals for the Ninth Circuit. (ECF No. 78.) Plaintiff‟s appeal was denied on May 11, 2015.
(ECF No. 101.)

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In his motion to amend, Plaintiff indicates that since filing the original complaint, Defendant

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Heberling had Plaintiff attacked. On October 29, 2012, correctional officers J. Arana and D.

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Randwated told Plaintiff “like to file lawsuits” and dumped Plaintiff out of his wheelchair. On

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February 10, 2013, Plaintiff learned that Defendant Heberling‟s friend W. Hanks had Plaintiff

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assaulted.
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a party who has already

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amended its pleading once, “may amend its pleading only with the opposing party‟s written consent or

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the court‟s leave.” “Rule 15(a) is very liberal and leave to amend „shall be freely given when justice

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so 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 delay

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in litigation; or (4) is futile.” Id.
Further, while the Court is mindful of the liberality of Rule 15(a) and the leniency accorded

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pro se litigants, the Court may properly deny leave to amend both if the proposed amendment is futile,

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e.g., Woods v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d

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1090, 1105-1106 (9th Cir. 2011); Carrico v. City and County of San Francisco, 656 F.3d 1002, 1008

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(9th Cir. 2011), and where the party seeking amendment knew or should have known of the facts upon

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which the proposed amendment is based but failed to include them in the original complaint, E.E.O.C.

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v. Boeing, Co., 843 F.2d 1213, 1222 (9th Cir. 1988). Finally, the Acourt=s discretion to deny leave to

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amend is particularly broad where the court has already given the plaintiff an opportunity to amend his

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complaint.@ Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432,

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1438 (9th Cir. 1986).

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On January 24, 2014, the Court screened Plaintiff‟s first amended complaint and found that

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Plaintiff stated a cognizable Eighth Amendment claim against Defendants Heberling, Sheer, and

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Nesmith (all employees of California Substance Abuse Treatment Facility (CSATF)).2 By way of

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motion to amend, Plaintiff now seeks to amend the complaint to include claims against three

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Plaintiff claim under the American‟s with Disabilities Act was dismissed for failure to state a cognizable claim for relief.
(ECF Nos. 36, 42.)

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correctional officers Rainwater, Arana, and Hanks (all employees of High Desert State Prison

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(HDSP)). (ECF No. 71 at 4.) Plaintiff contends that on October 29, 2012, Rainwater and Arana told

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him that they heard he liked to file lawsuits. (Id.) Plaintiff attempts to attributes this comment to

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Defendants Heberling, Scheer and Nesmith by reference to “grapevine.” (Id.) Plaintiff then claims

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that he was dumped out of his wheelchair, but he does not specify who did it or how it happened. (Id.)

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Plaintiff further claims that Rainwater then stated the Plaintiff was “not the first to be dump[ed] out of

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[his] wheelchair.” (Id.) Plaintiff alleges that on February 10, 2013, Hanks “had Plaintiff brutally

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assaulted and hospital[ized] due to grapevine from Defendants Heberling, Scheer, and Nesmith.” (Id.)

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Based on the dates alleged in the proposed second amended complaint and Plaintiff‟s motion to

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amend, it is clear that Plaintiff knew of the additional claims against Rainwater, Arana and Hanks for

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which he now seeks to amend-well before he filed the amended complaint on November 20, 2013.

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Plaintiff has failed to provide any reason for the two year delay in presenting such claim. Indeed, the

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Court previously gave Plaintiff opportunity to amend his complaint, which he did on November 20,

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2013, after both of the incidents for which he seeks to amend took place. Thus, Plaintiff could have,

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but did not, include the proposed amendments in his first amended complaint.

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Furthermore, Plaintiff‟s amendment of the complaint is futile because the amendments Plaintiff

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proposes would add claims and parties unrelated to the instant case. As previously stated, officers

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Rainwater, Arana and Hanks work at HDSP, whereas Defendants Heberling, Nesmith and Scheer are

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employees at CSATF. (ECF No. 71 at 4.) Under Federal Rule of Civil Procedure 20(a)(2), multiple

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defendants may be sued in the same action only if “any right to relief is asserted against them jointly,

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severally, or in the alternative, with respect to or arising out of the same transaction, occurrence, or

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series of transactions or occurrences,” and there is a “question of law or face common to all

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defendants.” “Unrelated claims against different defendants belong in different suits ….” George v.

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Smith, 507 F.3d 605, 607 (7th Cir. 2007) (citation omitted). Plaintiff attempts to link the CSATF and

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HDSP employees by his reference to “Grapevine by Defendants Heberling, Scheer, Nesmith.” (ECF

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No. 71 at 4.) This reference and allegation is vague, conclusory and speculation without any factual

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support. Plaintiff fails to explain how he has any personal knowledge with respect to any information

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that may have been passed from Defendants to the HDSP employees, or even the reference to
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“grapevine” entails. Such allegation is insufficient to establish a link between actions or omissions of

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each named defendant and the violation of his rights. See, e.g., Witkin v. Swarthout, No. 2:13-cv-

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01931, 2015 WL 471780 at *5 (E.D. Cal. Feb. 4, 2015) (“A plaintiff‟s mere speculation that there is a

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casual connection is insufficient” to state a claim).

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amend is DENIED.

Based on the foregoing, Plaintiff‟s motion to

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IT IS SO ORDERED.

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Dated:

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May 13, 2015
UNITED STATES MAGISTRATE JUDGE

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