Nielsen v. Lopez

Filing 31

ORDER Denying 29 Plaintiff's Motion to Amend, signed by Magistrate Judge Michael J. Seng on 10/9/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY NIELSEN,

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Plaintiff,

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v.
JOSE LOPEZ, et al.,

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CASE NO. 1: 14-cv-01608-AWI-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
TO AMEND
(ECF No. 29)

Defendants.

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I.

PROCEDURAL HISTORY
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 8.)
This matter proceeds on Plaintiff’s First Amended Complaint. (ECF No. 27.) The
Court screened Plaintiff’s First Amended Complaint and found that it stated a cognizable
excessive force claim against Defendant Lopez.

(ECF No. 28.)

The Court

recommended that the non-cognizable claims be dismissed with prejudice, and, on
October 7, 2015, the District Court adopted those findings and recommendations. (ECF
Nos. 28 & 30.)
On October 2, 2015, Plaintiff filed an “Errata,” seeking to correct errors in his First
Amended Complaint. (ECF No. 29.) The Court construes Plaintiff’s filing as a motion to
amend his First Amended Complaint.

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II.

MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
A.

Legal Standard

The decision to grant or deny leave to amend pleadings is within the trial court's
discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). A party
seeking leave to amend must demonstrate that amendment is proper under Federal
Rule of Civil Procedure 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 60708 (9th Cir. 1992). Under Rule 15(a)(2), the Court should freely give leave to amend a
pleading “when justice so requires.” The Court should apply this policy “with extreme
liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)
(quoting Morongo Band of Mission Indians v. Rose, 893 F. 2d 1074, 1079 (9th Cir.
1990)). “If the underlying facts or circumstances relied upon by a [party] may be a
proper subject of relief, he ought to be afforded an opportunity to test his claim on the
merits.” Foman v. Davis, 371 U.S. 178, 182 (1962).
However, a district court may deny leave to amend “where there is ‘any apparent
or declared reason’ for doing so, including undue delay, undue prejudice to the opposing
party or futility of the amendment.” Lockman Found. v. Evangelical Alliance Mission, 930
F.2d 764, 772 (9th Cir. 1991) (quoting Foman, 371 U.S. at 182). These factors are not
to be given equal weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
(9th Cir. 2003). Prejudice to the opposing party must be given the greatest weight. Id.
“Absent prejudice, or a strong showing of any of the remaining Foman factors, there
exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id.
B.

Plaintiff’s Proposed Amendments

Plaintiff seeks to include the phrase “and then violently slammed plaintiff face-first
down into the tiled concrete floor” at the end of the below paragraph:
Nonetheless, at this point, defendant Josê Lopez, without
forewarning or provocation, pushed plaintiff hard up against
the Day Room wall where plaintiff was being contained.

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(ECF No. 27 at 3-4.) Plaintiff also wishes to correct the spelling of Defendant’s name
from Josê Lopez to José Lopez.

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C.

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Plaintiff’s requested changes appear to be typographical errors and errors in
transcription from his original complaint to his First Amended Complaint.

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The

modifications do not change the fact that Plaintiff has stated a cognizable excessive
force claim against Defendant Lopez. They simply allege Defendant used additional
excessive force, causing additional injuries to Plaintiff. These modifications neither add
to nor detract from the substance of Plaintiff’s First Amended Complaint. They raise facts
which may be presented as evidence at the appropriate time even though not pled with
the specificity Plaintiff desires now.

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Analysis

The diacritic error in the spelling of Defendant’s name will not prevent service on
Defendant nor the action from proceeding against him.
III.

CONCLUSION AND ORDER
For the reasons stated, it is HEREBY ORDERED that:
Plaintiff’s motion to amend is DENIED (ECF No. 29.).

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IT IS SO ORDERED.

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Dated:

October 9, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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