Harris v. Pimentel, et al.

Filing 206

ORDER DENYING Defendant's 192 Motion to Dismiss or Strike Plaintiff's Second Amended Complaint, signed by Magistrate Judge Jeremy D. Peterson on 8/12/2019. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DARRELL HARRIS,

Case No. 1:13-cv-01354-DAD-JDP

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Plaintiff,

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v.

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS OR STRIKE
PLAINTIFF’S SECOND AMENDED
COMPLAINT

Defendant.

ECF No. 192

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S. ESCAMILLA,

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Plaintiff Darrell Harris is a state prisoner proceeding with counsel in this civil rights

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action brought under 42 U.S.C. § 1983. On May 25, 2018, the U.S. Court of Appeals for the

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Ninth Circuit held that this court erred in granting summary for defendant Escamilla on Harris’s

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First Amendment and Equal Protection claims, and remanded for Harris to amend his Bane Act

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claim. See ECF No. 167; Harris v. Escamilla, 736 F. App’x 618 (9th Cir. 2018). On June 19,

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2018, I gave Harris leave to amend. ECF No. 171. Between the remand and the amendment,

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Harris—once pro se—obtained counsel. ECF No. 187. Harris filed his second amended

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complaint on September 7, 2018. ECF No. 191. The amendments were substantial, but did not

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include a Bane Act claim. On September 21, Escamilla filed a motion to dismiss or strike the

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second amended complaint, arguing that the amendments were unauthorized by the court of

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appeals’ mandate and contained “immaterial, impertinent, or scandalous matter” that should be

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struck under Rule 12(f) of the Federal Rules. See ECF No. 192. Harris filed an opposition on
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October 5. ECF No. 196. Escamilla replied on October 10. ECF No. 198.
I am not persuaded that Harris’s second amended complaint should be dismissed or

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struck. First, the complaint does not violate the court of appeals’ mandate. While “lower courts

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are obliged to execute the terms of a mandate, they are free as to anything not foreclosed by the

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mandate.” United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000) (citations and

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internal quotation marks omitted). Here, the court of appeals “remand[ed] this claim to the

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district court for Harris to be given leave to amend.” Harris, 736 F. App’x at 622. While the

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panel contemplated a narrow amendment that would “allege compliance with the Government

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Claims Act” for the purpose of a Bane Act claim, the mandate did not foreclose other

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amendments. The scope of other amendments was not a “matter decided on appeal” from which

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this court “cannot vary” or “examine . . . for any other purpose than execution.” In re Sanford

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Fork & Tool Co., 160 U.S. 247, 255 (1895). I thus retain discretion over the scope of

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amendments under Rule 15 of the Federal Rules.

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Second, Harris’s second amended complaint does not contain “immaterial, impertinent, or

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scandalous matter” that should be struck under Rule 12(f). The purpose of a Rule 12(f) motion to

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strike is “to avoid the expenditure of time and money that must arise from litigating spurious

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issues.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Here, I see no

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evidence that the amendments to the complaint are “spurious”; to the contrary, they refine the

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First Amendment and Equal Protection claims that were before the court of appeals.

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Harris was, until recently, proceeding without counsel. The first amended complaint was

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handwritten on notebook paper; the second has been honed with the input of an attorney.

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Compare ECF No. 9 with ECF No. 191. Rule 15(a)(2) commands that a “court should freely give

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leave [to amend] when justice so requires.” See also Penwell v. Holtgeerts, No. 05-2106, 2013

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WL 3553417, at *2 (W.D. Wash. July 11, 2013) (noting that amendments like those here can be

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“especially appropriate” for a pro se plaintiff). Here, justice is best served by allowing the

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amendments.

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IT IS SO ORDERED.

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Dated:

August 12, 2019

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UNITED STATES MAGISTRATE JUDGE

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No. 205.

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