Hearns v. Gonzales

Filing 25

FINDINGS and RECOMMENDATIONS to: 1) Grant 23 Plaintiff's Motion for Leave to File a Fourth Amended Complaint and 2) Vacate 20 Findings and Recommendations for Service of Plaintiff's Third Amended Complaint, signed by Magistrate Judge Michael J. Seng on 9/28/15. Objections Due within Fourteen Days. Referred to Judge O'Neill. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMAR R. HEARNS,

CASE NO. 1: 14-cv-01177-LJO-MJS (PC)

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Plaintiff,

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FINDINGS AND RECOMMENDATIONS
TO:

v.
R. GONZALES,
Defendant.

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1) GRANT PLAINTIFF’S MOTION FOR
LEAVE TO FILE A FOURTH
AMENDED COMPLAINT (ECF No. 23);
AND
2) VACATE FINDINGS AND
RECOMMENDATIONS FOR SERVICE
OF PLAINTIFF’S THIRD AMENDED
COMPLAINT (ECF No. 20)

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OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

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Plaintiff, a state prisoner incarcerated at Valley State Prison (“VSP”), initiated this

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action, pro se, on June 2, 2014, in Madera County Superior Court. (Notice of Removal,

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ECF No. 2, Ex. A.) Defendant Gonzales removed the matter to this Court on July 25,

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2014, pursuant to 28 U.S.C. § 1441(a), based upon the Court’s original jurisdiction under

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28 U.S.C. § 1331.

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On August 5, 2015, the Magistrate Judge issued findings and recommendations

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to proceed with service of the cognizable retaliation, equal protection, and conversion

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claims against Defendants Gonzales and Doe in Plaintiff’s Third Amended Complaint.

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(ECF No. 20.) On August 17, 2015, Plaintiff moved for leave to file a Fourth Amended
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Complaint. (ECF No. 23).
I.

LEGAL STANDARD

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A party may amend his pleading, after a responsive pleading is served, only by

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leave of the court, or by written consent of the adverse party, and leave shall be freely

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given when justice so requires. Fed. R. Civ. P. 15(a); Amerisource Bergen Corp. v.
Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).

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In determining whether to grant leave to amend, the court considers five factors:

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(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of

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amendment; and (5) whether the plaintiff has previously amended his complaint.

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Desertrain v. City of Los Angeles, 754 F.3d 1147. 1154 (9th Cir. 2014); Johnson v.

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Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)). Prejudice to the opposing party carries

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the greatest weight. Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 708 F.3d

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1109, 1117 (9th Cir. 2013). However, absent prejudice or a strong showing of any of the

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other factors there exists a presumption in favor of granting leave to amend. Eminence

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Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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II.

Plaintiff seeks leave to file an amended complaint “solely” so that he may “replace

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DISCUSSION

the identity of Doe 1 with the Defendant’s actual name.” (ECF No. 23, at 1.) In the
lodged Fourth Amended Complaint, Plaintiff identifies Doe 1 as Correctional Sergeant

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Olsen.
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The Court will GRANT Plaintiff’s motion. Though Plaintiff has amended his

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pleadings multiple times, Defendants have yet to be served and hence will not be

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prejudiced by the recent identification of Defendant Olsen. Indeed, Plaintiff’s discovery
of Defendant Olsen’s name will in all likelihood allow service to proceed faster and more

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efficiently. Moreover, amendment does not appear to be futile: the Magistrate Judge

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found that Plaintiff’s Third Amended Complaint stated valid claims against the Doe

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defendant now identified as Olsen (ECF No. 20). Given Plaintiff’s assertion that the facts

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alleged in his Fourth Amended Complaint do not differ from those in his Third Amended

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Complaint, the claims against Olsen would be expected to survive another round of
screening.

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Accordingly, the Court HEREBY RECOMMENDS that:
1) Plaintiff’s motion for leave to file a Fourth Amended Complaint (ECF No. 23)
be GRANTED;
2) The Findings and Recommendations issued August 5, 2015 (ECF No. 20) be
VACATED; and
3) The Clerk of Court be directed to file Plaintiff’s lodged Fourth Amended
Complaint (ECF No. 24).

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, any

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party may file written objections with the Court and serve a copy on all parties. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any reply to the objections shall be served and filed within fourteen

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(14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal.

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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 28, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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