Valencia v. Gibson et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Motion for Leave to File an Amended Complaint, signed by Magistrate Judge Stanley A. Boone on 9/22/15, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ABEL VALENCIA,
Plaintiff,
v.
CONNIE GIPSON, et al.,
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Defendants.
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Case No. 1:12-cv-01446-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF‟S MOTION FOR
LEAVE TO FILE AN AMENDED COMPLAINT
[ECF No. 71]
Plaintiff Abel Valencia is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On July 24, 2015, Plaintiff filed a motion for leave to file an amended complaint, along with a
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proposed amended complaint which was lodged by the Court. (ECF Nos. 71, 72.) Defendants filed an
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opposition on August 14, 2015. (ECF No. 75.)
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I.
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DISCUSSION
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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party‟s
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pleading once as a matter of course at any time before a responsive pleading is served. Fed. R. Civ. P.
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15(a). Otherwise, a party may amend only by leave of the court or by written consent of the adverse
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party. Id.
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“Rule 15(a) is very liberal and leave to amend „shall be freely given when justice so requires.‟”
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AmerisourceBergen 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.” AmerisourceBergen Corp., 465 F.3d at 951. These factors are not of equal weight. Futility of
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amendment has been held to be sufficient grounds for denial of a motion to amend.
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Calderon, 59 F.3d 815, 845 (9th Cir. 1995); Ascon Props. Inc. v. Mobile Oil Co., 866 F.2d 1149, 1160
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(9th Cir. 1989).
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amendment to the pleadings that would constitute a valid and sufficient claim or defense. Miller v.
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Bonin v.
A proposed amendment is futile only if no set of facts can be proved under the
Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
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Plaintiff filed the initial complaint on September 4, 2012, and named fifteen Defendants,
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including George Giurbino as Director of the California Department of Corrections and Rehabilitation
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(CDCR), for alleged violations of the First, Eighth, and Fourteenth Amendments and state law arising
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from Plaintiff‟s placement and retention in the administrative segregation and subsequent validation as
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an associate of a prison gang, resulting in placement in a Security Housing Unit. (ECF No. 1.) The
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Court screened Plaintiff‟s complaint pursuant to 28 U.S.C. § 1915A(a) and found it only stated
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cognizable claims against Defendant Ruiz for retaliation and Ruiz, Mayo, Garcia, Smith, Johnson, and
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an unknown IGI officer for due process violations. (ECF No. 14, Order at 12:25-13:2.) The Court
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granted Plaintiff the opportunity to either file an amended complaint or inform the Court in writing
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that he wished to proceed only on the claims found to be cognizable and dismiss all other claims. (Id.
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at 13:2-12.) Plaintiff filed a notice that he did not wish to amend the complaint and intended to
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proceed on the cognizable claims identified in the Court‟s screening order. (ECF No. 18.)
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On September 11, 2015, Plaintiff‟s retaliation claim against Defendant Ruiz and due process
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claim against Defendants Mayo, Garcia, Smith, and Johnson were dismissed without prejudice for lack
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of exhaustion. (ECF No. 76.)
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In his first amended complaint, Plaintiff seeks to reinstate many of the claims and Defendants
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previously dismissed by the Court pursuant to Plaintiff‟s consent. (See ECF No. 72.) Plaintiff seeks
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to revive his claims for supervisory liability, retaliation of formerly-dismissed Defendants, cruel and
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unusual punishment, equal protection, and state-law claims. (ECF No. 72, Lodged Second. Am.
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Compl. at 28:19-30:13, 40:1-47:3, 48:17-50:25.) However, Plaintiff‟s motion is premised on his intent
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to add J. Beard, in place of G. Giurbino, as a Defendant in this action for his claim for injunctive
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relief, following the dismissal of all Defendants except Defendant Ruiz. (ECF No. 71, Mot. at 2:1-4.)
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Defendant Giurbino was previously dismissed from the action for failure to state a cognizable claim
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for relief. Plaintiff may bring a claim against the Director of CDCR in his official capacity for
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purposes of injunctive relief. See Hartmann v. California Dep‟t of Corr. & Rehab., 707 F.3d 1114,
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1117 (9th Cir. 2013) (a plaintiff seeking injunctive relief against the State need only identify the law or
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policy challenged as a constitutional violation and name the official within the entity who can
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appropriately respond to injunctive relief.). If Plaintiff prevails on his claim that his rights were
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violated and the gang validation information is unreliable and he is entitled to release from the
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Security Housing Unit and expungement of such information, the Director, or Secretary, is in the
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position to effect relief, regardless of which institution holds Plaintiff at the time this suit reaches
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conclusion. Accordingly, Plaintiff may proceed on his official capacity claim against Jeffrey Beard, in
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place of G. Giurbino, and such claim is reinstated in this action.1 Plaintiff may not attempt to reinstate
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any other claims or defendants that were previously dismissed. Therefore, Plaintiff‟s motion for leave
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to amend is granted only to reinstate the official capacity claim for injunctive relief against Defendant
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Beard, and there is no need to file the lodged first amended complaint which will be stricken from the
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record.
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II.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Plaintiff‟s motion for leave to amend is GRANTED;
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2.
Plaintiff‟s official capacity claim against Defendant Jeffery Beard for injunctive relief
is reinstated in this action; and
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3.
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The first amended complaint, lodged on July 24, 2015, is stricken from the record.
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The Court takes judicial notice of the fact that Dr. Jeffrey Beard is currently the Secretary of CDCR. Fed. R. Civ. P. 201.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days
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after being served with these Findings and Recommendations, the parties may file written objections
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with the Court. The document should be captioned “Objections to Magistrate Judge‟s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified time
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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
September 22, 2015
UNITED STATES MAGISTRATE JUDGE
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