Holmes v. Jaramillo et al

Filing 34

ORDER CONSTRUING Plaintiff's 29 Motion to Amend the Complaint to add "Failure to Protect," "Negligence," "Incompetence," and "Malicious Act," as a Motion to File a Second Amended Complaint; ORDER DENYING Plaintiff's 29 Motion to File a Second Amended Complaint signed by Magistrate Judge Jennifer L. Thurston on 4/25/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN HOLMES,

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Plaintiff,

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v.
S. JARAMILLO et al,

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Defendants.

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Case No.: 1:12-cv-01759 –JLT (PC)
ORDER CONSTRUING PLAINTIFF’S MOTION
TO AMEND COMPLAINT TO ADD “FAILURE
TO PROTECT,” “NEGLIGENCE,”
“INCOMPETENCE,” AND “MALICIOUS ACT”
AS A MOTION TO FILE A SECOND AMENDED
COMPLAINT
ORDER DENYING PLAINTIFF’S MOTION TO
FILE A SECOND AMENDED COMPLAINT.
(Doc. 29)

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

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with a civil rights action pursuant to 42 U.S.C. § 1983. Presently, Plaintiff has filed a “Motion to

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Amend [the] Complaint to add “Failure to Protect,” “Negligence,” “Incompetence,” and “Malicious

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Act” (Doc. 29), which the Court construes as a motion to file a second amended complaint.
For the following reasons, Plaintiff’s motion for leave to file a second amended complaint is

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DENIED.

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I. BACKGROUND AND PROCEDURAL HISTORY.

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Plaintiff filed his initial complaint on October 16, 2012, which the Court dismissed with leave

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to amend on October 30, 2012. (Docs. 2, 5). Plaintiff filed his first amended complaint on November

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21, 2012. (Doc. 11). The Court screened Plaintiff’s first amended complaint pursuant to 28 U.S.C. §

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1915(e)(2)(B) and determined that Plaintiff stated a cognizable Eighth Amendment claim of failure to

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protect pursuant to 42 U.S.C. § 1983 against Defendant Jaramillo. (Doc. 15). In the screening order,

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the Court also directed service of the first amended complaint on Defendant Jaramillo on November

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26, 2012. (Doc. 15). Defendant Jaramillo answered the first amended complaint on March 11, 2013.

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(Doc. 21).

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In his motion to file a second amended complaint, Plaintiff appears to be adding a common law

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complaint of negligence and an intentional tort of “malicious act.” (Doc. 29). Defendant Jaramillo

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indicates that Plaintiff’s filing of a second amended complaint would be futile. (Doc. 30).

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II. DISCUSSION AND ANALYSIS.

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Under Fed.R.Civ.P. 15(a), a party may amend a pleading once as a matter of course within 21

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days of service, or if the pleading is one to which a response is required, 21 days after service of the

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responsive pleading. “In all other cases, a party may amend its pleading only with the opposing

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party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). Here, Defendant filed an answer

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on March 11, 2013. (Doc. 21). Therefore, Plaintiffs require either consent of Defendant or leave of the

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Court to file amended pleadings. Defendants do not consent to Plaintiff’s proposed amendment. (Doc.

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30).

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Granting or denying leave to amend a complaint is in the discretion of the Court, Swanson v.

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United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996), though leave should be “freely given

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when justice so requires.” Fed.R.Civ.P. 15(a)(2). “In exercising this discretion, a court must be

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guided by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the

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pleadings or technicalities.” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). After a

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defendant files a responsive pleading, leave to amend should not be granted where “amendment would

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cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Madeja

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v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002), citing Yakima Indian Nation v. Wash. Dep’t
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of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999). There is no abuse of discretion “in denying a

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motion to amend where the movant presents no new facts but only new theories and provides no

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satisfactory explanation for his failure to fully develop his contentions originally.” Bonin v. Calderon,

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59 F.3d 815, 845 (9th Cir. 1995); see also Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.

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1990).
A. Permitting the amendment would be futile.

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There is no indication or suggestion that bad faith motivates Plaintiff’s request to amend his

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first amended complaint. Rather, Defendants proffer that it would be futile to permit amendment of

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the complaint as Plaintiff’s operative Eighth Amendment claim for punitive damages encompasses the

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term “malicious act.” (Doc. 30 at 3). Additionally, Defendants indicate that there is no cause of action

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for “incompetence” under state or federal law and that Plaintiff fails to state a cause of action for

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“negligence.” Id.

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Without screening the proposed second amended complaint to determine whether Plaintiff

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states any cognizable claim for “negligence,”1 “failure to protect” or “incompetence,” the Court notes

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that Plaintiff’s first amended complaint already contains a claim for failure to protect in violation of

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the Eighth Amendment. (Doc. 11). Furthermore, Plaintiff avers that “Defendant Jaramillo was aware

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[a] the serious risk of violence existed,” which speaks to “deliberate indifference” or “malicious act.”

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Id. at 5. This is already an element of Plaintiff’s Eighth Amendment claim. Thus, it would be futile to

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permit Plaintiff to amend his first amended complaint.
B. Permitting the amendment would cause undue delay.

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Plaintiff provides no reasons for seeking to amend the complaint, but rather submits a proposed

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second amended complaint in the body of his motion. (Doc. 29). In addition, Plaintiff does not allege

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new facts in his proposed second amended complaint, but rather presents new legal theories. The

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In addition, it would be futile to permit Plaintiff to amend his complaint to contain the alleged common law action of
negligence. Under the California Tort Claims Act (“CTCA”), a plaintiff may not maintain an action for damages against a
public employee unless he has presented a written claim to the state Victim Compensation and Government Claims Board
within six months of accrual of the action. See Cal. Gov’t Code §§ 905, 911.2(a), 945.4 & 950.2; Mangold v. California
Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995). Failure to allege compliance constitutes a failure to state a cause
of action and will result in the dismissal of plaintiff’s state law claims. State of California v. Superior Court (Bodde), 32
Cal.4th 1234, 1243-44 (2004). Plaintiff has made no mention of the CTCA.

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Ninth Circuit has noted that “late amendments to assert new theories are not reviewed favorably when

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the facts and the theory have been known to the party seeking amendment since the inception of the

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cause of action.” Acri v. Int'l Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th

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Cir. 1986). Plaintiff should have sought to pursue his claim of “negligence” in filing his original or

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first amended complaint. Notably, Plaintiff tarried four months beyond the filing of his first amended

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complaint before again seeking to amend his complaint.

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Permitting Plaintiff to file a second amended complaint in this matter would require the Court

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to again screen the complaint to determine whether Plaintiff states a cognizable claim on facts already

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presented to the Court. Defendant would be required to again answer the complaint. The result would

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be further undue delay a resolution of this matter. Therefore, Plaintiff’s motion to file a second

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amended complaint is DENIED.

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ORDER

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Accordingly, and for the aforementioned reasons, the Court DENIES Plaintiff’s Motion to File

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a Second Amended Complaint (Doc. 29) because amending the operative complaint would be futile

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and cause undue delay.

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IT IS SO ORDERED.

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Dated:

April 25, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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