Jacobsen v. People of the State of California

Filing 56

ORDER Granting 47 Defendants' Motion to Strike 44 Plaintiff's Third Amended Complaint and Denying Plaintiff's 50 Request for Leave to File an Amended Complaint, signed by Magistrate Judge Jennifer L. Thurston on 9/29/15. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL NEIL JACOBSEN, Plaintiff, 12 v. 13 14 PEOPLE OF THE STATE OF CALIFORNIA, Case No. 1:14-cv-00108-JLT (PC) ORDER GRANTING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S THIRD AMENDED COMPLAINT and DENYING PLAINTIFF'S REQUEST FOR LEAVE TO FILE AN AMENDED COMPLAINT (Docs. 47, 50) 15 Defendant. 16 17 I. Background 18 Plaintiff filed his original complaint in this action on January 24, 2014. (Doc. 1.) The 19 Court screened it and dismissed it with leave to amend. (Doc. 11.) On May 7, 2014, Plaintiff 20 filed the First Amended Complaint ("1stAC")1 (Doc. 13) which the Court screened. (Doc. 15). 21 On July 3, 2014, Plaintiff filed the Second Amended Complaint ("2ndAC"). (Doc. 16) The Court 22 screened it and found the complaint stated cognizable claims for relief under section 1983. In 23 particular, the Court found cognizable claims: (1) against Sergeant Diaz for using excessive force 24 and for deliberate indifference to Plaintiff’s serious medical needs in violation of the Eighth 25 Amendment and for violation of Plaintiff's right of access to the courts and retaliation in violation 26 of the First Amendment; (2) against Officer Barahas for using excessive force in violation of the 27 1 28 A week later, Plaintiff filed a "motion to addendum" (Doc. 14) which was disregarded when the 1stAC was screened and Plaintiff was thereafter given another opportunity to amend (Doc. 15). 1 1 Eighth Amendment and for retaliation in violation of the First Amendment; and, (3) against 2 Monica Choe, R.N. (erroneously sued herein as "Nurse Monica") for deliberate indifference to his 3 serious medical needs in violation of the Eighth Amendment. (Doc. 17). Thereafter, Defendants 4 Diaz and Barahas were served and filed answers. (Docs. 22, 25.) The Court then issued the first 5 Discovery and Scheduling Order issued. (Doc. 24.) Defendant Choe was served later. (See 6 Docs. 35, 38, 48.) 7 On August 13, 2015, Plaintiff lodged his Third Amended Complaint ("3rdAC"). (Doc. 8 44.) In response, Diaz and Barahas ("Defendants") filed a motion to strike the 3rdAC. (Doc. 47.) 9 Though Choe filed an answer (Doc. 48), she has not opposed the motion to amend or joined in the 10 other Defendants’ motion. Plaintiff did not file an opposition to Defendants’ motion to strike. 11 However, he filed a motion for leave to file an amended complaint. (Doc. 50.) Defendants Diaz 12 and Barahas opposed the motion. (Doc. 52) Plaintiff did not file a reply. 13 II. Amendment under Rule 15 14 The decision to grant leave to amend a complaint is vested within the discretion of the 15 Court, Swanson v. United States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996), though leave 16 should be “freely give[n] when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, there is 17 no abuse of discretion “in denying a motion to amend where the movant presents no new facts but 18 only new theories and provides no satisfactory explanation for his failure to fully develop his 19 contentions originally.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995); see also Allen v. 20 City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990). The Court should not grant leave where 21 “amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or 22 creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002) (citing 23 Yakama Indian Nation v. Washington Dep't of Revenue, 176 F.3d 1241, 1246 (9th Cir. 1999)). 24 A. Defendants' Motion 25 In their motion, Defendants argue only that a "court may strike from a pleading an 26 insufficient defense or any redundant, immaterial, impertinent, or scandalous2 matter" (Doc. 47, 27 2 28 Defendants fail to identify any parts of the 3rdAC they feel are "redundant, immaterial, impertinent, or scandalous" and the Court finds none. 2 1 2:17-18, citing Rule 12(f)); that the operative Amended Discovery and Scheduling Order stated 2 September 22, 2015 as the deadline for filing of amended pleadings in compliance with Rule 15 3 and Local Rule 220 (id., at 2:18-23); and that Plaintiff's 3rdAC should be stricken because he 4 filed it without a stipulation of the parties and without leave of the court (id., at 2:23-26). 5 Defendants argue that since Plaintiff failed to comply with the Amended Discovery and 6 Scheduling Order and Rule 15, "the Court should strike the entirety of Plaintiff's third amended 7 complaint because it is immaterial." (Id., at 2:26-28.) Defendants both fail to provide any 8 argument as to why they feel the 3rdAC is "immaterial" and fail to address any of the factors 9 under Rule 15 pertaining to amendment. 10 B. Plaintiff's Motion 11 Plaintiff's request for leave to amend is sparse and terse. The whole of Plaintiff's request 12 13 14 15 16 is: Petitioner, Michael Jacobsen, does hereby move the court to grant a leave of court to amend complaint pursuant to Federal Rules of Civil Procedure 15(a)(2). The deadline to ammend [sic] said complaint is Sept. 22, 2015. The amended complaint Petitioner wishes to file is attached hereto. Notably, there is no amended complaint attached to Plaintiff's request. (See Doc. 50.) 17 C. Rule 15 18 Defendants' motion to strike the 3rdAC and Plaintiff's motion to amend must be viewed in 19 light of the requirements of Rule 15. Under Rule 15(a), there are five factors to be considered in 20 deciding whether to grant leave to amend a complaint: (1) whether the plaintiff has previously 21 amended his compliant, (2) undue delay, (3) bad faith, (4) futility of amendment, and (5) 22 prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962); Loehr v. Ventura 23 County Community College Dist., 743 F.2d 1310, 1319 (9th Cir. 1984). These factors are not of 24 equal weight; prejudice to the opposing party has long been held to be the most crucial factor in 25 determining whether to grant leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 26 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the consideration of 27 prejudice to the opposing party that carries the greatest weight”); Jackson v. Bank of Hawaii, 902 28 F.2d 1385, 1387 (9th Cir. 1990); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973). 3 1 1. Prior amendments The Court’s discretion to deny an amendment is “particularly broad” where a party has 2 3 previously amended the pleading. Allen, 911 F.2d at 373. Here, the Court has permitted Plaintiff 4 several opportunities to amend his complaint. Therefore, this factor weighs in favor of striking 5 the 3rdAC. 6 2. Undue delay 7 By itself, undue delay is insufficient to prevent the Court from granting leave to amend 8 pleadings. Howey, 481 F.2d at 1191; DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 9 1986). However, in combination with other factors, delay may be sufficient to deny amendment. 10 See Hurn v. Ret. Fund Trust of Plumbing, 648 F.2d 1252, 1254 (9th Cir. 1981). An important 11 factor is whether “permitting an amendment would . . . produce an undue delay in the litigation.” 12 Jackson, 902 F.2d at 1387. Plaintiff's 3rdAC seeks to insert two new defendants and adds and/or 13 clarifies factual allegations made in the 2ndAC. This action is over a year and a half old and the 14 current discovery deadline is a mere two months away.3 15 Given the age and procedural position of this case, allowing the 3rdAC to proceed would 16 cause a significant delay in the action. The two new defendants would need to be located, served 17 and given the opportunity to conduct discovery. As a result, this factor weighs in favor of striking 18 the 3rdAC. 19 3. Bad faith 20 There is no evidence before the Court to suggest whether Plaintiff may have acted in bad 21 faith when he submitted the 3rdAC. Thus, this factor has no bearing in whether the Court should 22 strike the 3rdAC. 23 4. Futility of amendment 24 While the Court is mindful of the liberality of Rule 15(a) and the leniency accorded pro se 25 litigants, the Court may properly deny leave to amend if the proposed amendments are futile. 26 Woods v. City of San Diego, 678 F.3d 1075, 1082 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 27 3 28 Defendant Choe has requested the operative discovery and scheduling order be significantly modified. (Doc. 55.) However, the time for the other parties to file oppositions and which may thereafter be replied to has yet to lapse. 4 1 1090, 1105-06 (9th Cir. 2011); Carrico v. City and County of San Francisco, 656 F.3d 1002, 2 1008 (9th Cir. 2011). The Court has similar authority where the party seeking amendment knew 3 or should have known of the facts upon which the proposed amendment is based, but failed to 4 include them in prior pleadings, E.E.O.C. v. Boeing, Co., 843 F.2d 1213, 1222 (9th Cir. 1988). 5 The amendment is futile where added claims duplicate existing claims or are patently 6 frivolous. See Bonin, 59 F.3d at 846. In this case, Plaintiff's allegations against the two 7 individuals whom he names in the 3rdAC as new defendants in this action duplicate Plaintiff's 8 claims against Defendant Diaz. Plaintiff's allegations against the two potential new defendants 9 are stated within Plaintiff's claims which have already been found cognizable against Defendant 10 Diaz and Plaintiff alleges that the two potential new defendants acted at Defendant Diaz's behest. 11 (See e.g. Doc. 44, pp. 6-10.) 12 Further, the 3rdAC is based on the precise factual allegations that Plaintiff alleged in his 13 prior pleadings in this action -- particularly those of the 2ndAC. However, Plaintiff fails to 14 provide any explanation, let alone anything even verging on a satisfactory explanation, as to why 15 he failed to include them in his prior pleadings. Bonin, 59 F.3d at 845. This is of particular 16 concern because the Court directed Plaintiff to identify each individual defendant(s) "by name or 17 by a Doe designation" in the order related to the screening of the 1stAC. (Doc. 15, 4:7-5:1) 18 Despite this explicit direction, in his 2ndAC, Plaintiff failed to indicate there were any other 19 actors whose names/identities he did not know, but to whom he attributed culpability (see Doc. 20 16). 21 Finally, Plaintiff's new allegations that the violations of his due process rights prevented 22 him from timely filing pre-trial motions which caused him to be convicted of a crime which he 23 did not commit (Doc. 44, pp. 7-8), raises an issue as to whether this action would be barred by the 24 favorable termination rule. When a prisoner raises a constitutional challenge, which could entitle 25 him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 26 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 498 U.S. 1126 27 (1991). Moreover, when seeking damages for an allegedly unconstitutional conviction or 28 imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on 5 1 direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to 2 make such determination, or called into question by a federal court’s issuance of a writ of habeas 3 corpus, 28 U.S.C. §2254.” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). “A claim for 4 damages bearing that relationship to a conviction or sentence that has not been so invalidated is 5 not cognizable under § 1983.” Id., at 487. Plaintiff does not state any facts in the 3rdAC to show 6 that his conviction or sentence has been reversed, expunged, declared invalid, or called into 7 question. (Doc. 44.) Thus, his new allegations that was held in Ad-Seg for the purpose of 8 blocking his access to phones, visits with his family, and access to the courts—via blocking his 9 access to the law library—are not cognizable in this action. The Court notified Plaintiff as much 10 in its order screening his 1stAC. (See Doc. 15, 6:12-7:1.) Accordingly, this factor weighs 11 heavily in favor of striking the 3rdAC. 12 5. Prejudice to the opposing party 13 The most critical factor in determining whether to grant leave to amend is prejudice to the 14 opposing party. Eminence Capital, 316 F.3d at 1052. The burden of showing prejudice is on the 15 party opposing the amendment. DCD Programs, 833 F.2d at 187; Beeck v. Aquaslide ‘N’ Dive 16 Corp., 562 F.2d 537, 540 (9th Cir. 1977). Prejudice must be substantial to justify denial of leave 17 to amend. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). 18 There is a presumption in favor of granting leave to amend where prejudice is not shown under 19 Rule 15(a). Eminence Capital, 316 F.3d at 1052. 20 Importantly, extending the discovery period has been found to prejudice existing 21 defendants in this scenario. See, e.g., Zivkovic, 302 F.3d at 1087 (observing “[t]he requirement of 22 additional discovery would have prejudiced [the defendant]” if leave to amend a complaint was 23 granted); Lockheed Martin Corp. v. Network Solutions Inc., 194 F.3d 980, 986 (9th Cir. 1999) 24 (“[a] need to reopen discovery and therefore delay the proceedings supports a district court’s 25 finding of prejudice”). Defendants would be prejudiced if the Court were to allow Plaintiff to add 26 new parties more than 18 months after initiation of the lawsuit where the vast majority of 27 discovery with two of the three current Defendants is (or should be) nearly completed. See DCD 28 Programs, 833 F.2d at 187; Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 6 1 1054, 1069 (6th Cir. 1995)). Given the likely prejudice to Defendants, this factor also weighs in 2 favor of striking the 3rdAC. 3 III. Conclusion 4 The Court finds that the predominance of factors under Federal Rule of Civil Procedure 5 15 weigh in favor of granting Defendants' motion to strike Plaintiff's lodged Third Amended 6 Complaint from this action. Based on the above, the Court ORDERS: 7 1. Defendants’ motion to strike the lodged Third Amended Complaint (Doc. 47), is 8 GRANTED; 9 2. Plaintiff's request for leave to file an amended complaint (Doc. 50), is DENIED; and 10 3. Plaintiff's Third Amended Complaint (Doc. 44), is STRICKEN. 11 12 13 IT IS SO ORDERED. Dated: September 29, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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