Valdez v. Beard et al

Filing 60

ORDER Granting 52 Motion for Leave to File a Supplemental Complaint; ORDER Directing Clerk of Court to File Fourth Amended Complaint 53 Nunc Pro Tunc; ORDER Granting Defendants' 55 Request for Clarification; ORDER Granting 59 D efendants' Motion for Extension of Time to File Answer; ORDER Directing Plaintiff to Submit Service Documents, signed by Magistrate Judge Michael J. Seng on 10/17/16. Service is appropriate for Davey, Romo, Oliveira, Perez, Campbell, Wilson, Lester. Answer Due Within Fourteen Days. (Attachments: # 1 USM Forms & Instructions)(Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUBEN VALDEZ,
Plaintiff,

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1:14-cv-01839-AWI-MJS (PC)
ORDER
(1) GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO FILE A
SUPPLEMENTAL COMPLAINT;

v.
JEFFREY BEARD, et al.,

(2) DIRECTING CLERK OF COURT TO
FILE FOURTH AMENDED
COMPLAINT NUNC PRO TUNC;

Defendants.

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(3) GRANTING DEFENDANTS’
REQUEST FOR CLARIFICATION;

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(4) GRANTING DEFENDANTS’
MOTION FOR EXTENSION OF
TIME;

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AND

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(5) DIRECTING PLAINTIFF TO SUBMIT
SERVICE DOCUMENTS.

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(ECF NOS. 52, 53, 55, 59)
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Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

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pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 302.

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The following motions are now pending before the Court: (1) Plaintiff’s September

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15, 2016, motion for leave to file a supplemental complaint (ECF No. 52); (2)

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Defendants’ September 16, 2016, request for clarification (ECF No. 55); and (3)

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Defendants’ October 11, 2016, motion for extension of time to file answer (ECF No. 59).

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I.

Relevant Background

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Plaintiff initiated this action on November 21, 2014, and filed a first amended

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complaint (“FAC”) on January 23, 2015, before his original complaint was screened.

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(ECF Nos. 1, 8.) On May 7, 2015, the FAC was screened and found to state cognizable

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claims against some Defendants but not others. Plaintiff was directed to either file an

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amended pleading or notify the Court of his willingness to proceed on the FAC as

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screened.

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On June 25, 2015, Plaintiff filed a second amended complaint (“SAC”). (ECF No.

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14.) This pleading was screened on July 28, 2015, and also found to state cognizable

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claims against some Defendants but not others. (ECF No. 15.) Plaintiff was again

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directed to file either an amended pleading or notify the Court of his willingness to

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proceed on the SAC as screened.

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Plaintiff filed the operative pleading, the third amended complaint (“TAC”), on

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August 24, 2015. (ECF No. 16.) This pleading was screened on October 15, 2015, and

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found to state cognizable due process and equal protection claims against the following

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Defendants: Beard, Castorena, Escobar, Lambert, Mahoney, Cano, Kraay, Galaviz,

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Rousseau, Gipson, Taber, Jennings, Sanchez, Pina, Pacillas, Lackovic, Smith,

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Kellogg, McGuire, Mayo, Mata, Holland, Prince, Chavez, Vasquez, Edgar, Garcia,

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Mayfield, and Patterson. (ECF No. 18.) Service was ordered November 2, 2015. (ECF

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No. 22.)

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Defendants appeared on January 6, 2016, by filing a motion to dismiss. (ECF No.

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26.) On June 21, 2016, the undersigned issued findings and recommendations to deny

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the motion to dismiss as to Plaintiff’s due process claim and to grant it as to Plaintiff’s

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equal protection claim. (ECF No. 42.)

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District Judge Anthony W. Ishii adopted the findings and recommendations in part

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on September 16, 2016. (ECF No. 54.) Judge Ishii adopted the recommendation to

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dismiss the equal protection claim but found that Defendants were entitled to qualified

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immunity as to some of the conduct underlying the due process claim premised on the

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periodic reviews of Plaintiff’s placement in the Security Housing Unit (“SHU”) because of

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his gang validation. Specifically, the district judge concluded that Defendants were

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entitled to qualified immunity for conduct pre-dating Brown v. Oregon Dept. of Corr., 751

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F.3d 983 (9th Cir. Apr. 29, 2014) (the periodic reviews occurring on August 2, 2012;

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December 20, 2012; June 20, 2013; July 23, 2013; and January 28, 2014), but not as

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to conduct post-dating that decision (those periodic reviews occurring on June

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2014; October 6, 2014; and January 7, 2015). (ECF No. 54.) Defendants were directed

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to file an answer within thirty days from the date of that order.

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Defendants now seek clarification of Judge Ishii’s order adopting in part. (ECF No.

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55.) Since only some Defendants were involved in the conduct post-dating the Brown

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decision, Defendants are inquiring as to the status of the remaining Defendants.

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Defendants have also moved for an extension of time to file their answer until resolution

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of their request for clarification.

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Plaintiff, for his part, moves for leave to file a supplemental complaint. (ECF No.

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52.) Defendants have not filed an opposition or statement of non-opposition to this

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motion, and the time for filing one has now passed. See E.D. Cal. Local Rule 230(l).

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II.

Plaintiff’s Motion to Amend

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The Federal Rules provide that leave to amend pleadings “shall be freely given

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when justice so requires.” Fed. R. Civ. P. 15(a). “[T]his policy is to be applied with

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extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th
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Cir. 1990) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987)).

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However, the futility of amendment can by itself justify denial of leave to amend. Bonin v.

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Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Amendment is futile, inter alia, where the

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applicable statute of limitations bars the proposed amendments. See Deutsch v. Turner

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Corp., 324 F.3d 692, 718 n.20 (9th Cir. 2003); Platt Elec. Supply, Inc. v. Eoff Elec., Inc.,

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522 F.3d 1049, 1060 (9th Cir. 2008).

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Plaintiff moves to file a Fourth Amended Complaint to add allegations regarding

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two additional periodic reviews of his SHU placement, one on July 14, 2015, and the

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other on March 3, 2016. He also seeks to add the inmate appeal number of his

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administrative grievance and the names and addresses of the Defendants named in

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their official capacities. Lastly, he seeks to clarify the period of time that he was held in

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the SHU; Plaintiff was released to general population on April 27, 2016. Since this

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amended pleading was filed before Judge Ishii’s adoption in part of the undersigned’s

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June 21, 2016, findings and recommendations, Plaintiff also re-asserts his now-

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dismissed equal protection claim.

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The Court has reviewed the lodged Fourth Amended Complaint and finds that

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leave to amend is appropriate. Plaintiff’s motion will therefore be granted subject to the

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following limitation: Plaintiff’s due process claim related to Defendants’ conduct that pre-

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dates the Brown decision and his equal protection claim are not actionable.

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III.

Defendants’ Request for Clarification

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The Court now turns to Defendants’ request for clarification. Pursuant to the

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Court’s October 15, 2015, Screening Order of the TAC, these Defendants were served

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with process and have appeared in this action: Beard, Castorena, Escobar, Lambert,

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Mahoney, Cano, Kraay, Galaviz, Rousseau, Gipson, Taber, Jennings, Sanchez,

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Pina, Pacillas, Lackovic, Smith, Kellogg, McGuire, Mayo, Mata, Holland, Prince,

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Chavez, Vasquez, Edgar, Garcia, Mayfield, and Patterson.

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Following Judge Ishii’s adoption in part of the undersigned’s June 21, 2016,

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findings and recommendations, and considering the actionable claims asserted in the
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Fourth Amended Complaint, this case proceeds against Defendant Beard and the

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following Defendants concerning these specific incidents:


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Defendants Jennings, Holland, Prince, Pina, Galaviz, and Chavez’s
“Annual Review” of Plaintiff’s SHU placement on June 24, 2014;

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

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Defendant Castorena’s October 6, 2014, approval of the June 24, 2014,
action;

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

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Defendants Vasquez, Holland, Garcia, Edgar, Patterson, and Mayfield’s
“180-day review” of Plaintiff’s SHU placement on January 7, 2015;

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

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Defendants Davey, Holland, Romo, Patterson, and Oliveira’s “180-day
review” of Plaintiff’s SHU placement on July 14, 2015; and

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

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Defendants Perez, Campbell, Wilson, and Lester’s “180-day review” of
Plaintiff’s SHU placement on March 3, 2016.

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Defendants Beard, Jennings, Holland, Prince, Pina, Galaviz, Chavez, Castorena,

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Vasquez, Garcia, Edgar, Patterson, and Mayfield have already appeared in this action

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and will be directed to file an answer to the Fourth Amended Complaint.

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Service has not yet been ordered on these Defendants: Davey, Romo, Oliveira,

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Perez, Campbell, Wilson or Lester. Accordingly, Plaintiff will be directed to submit

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documents necessary to effectuate service on them.

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Defendants Escobar, Lambert, Mahoney, Cano, Kraay, Rousseau, Gipson,

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Taber, Sanchez, Pacillas, Lackovic, Smith, Kellogg, McGuire, Mayo, and Mata will be

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dismissed pursuant to Judge Ishii’s Order.

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IV.

Conclusion

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to file a supplemental complaint (ECF No. 52) is

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GRANTED;
2. The Clerk of Court is directed to file the lodged September 15, 2016, Fourth
Amended Complaint (ECF No. 53) nunc pro tunc;
3. Defendants’ September 16, 2016, request for clarification (ECF No. 55) is
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GRANTED. Pursuant to Judge Ishii’s September 16, 2016, Order:

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a. Defendants Beard, Jennings, Holland, Prince, Pina, Galaviz, Chavez,

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Castorena, Vasquez, Garcia, Edgar, Patterson, and Mayfield remain in

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this action;

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b. Defendants Escobar, Lambert, Mahoney, Cano, Kraay, Rousseau,

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Gipson,

Taber, Sanchez,

Pacillas, Lackovic,

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Smith,

Kellogg,

McGuire, Mayo, and Mata are hereby dismissed;

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4. Defendants’ October 11, 2016, motion for extension of time (ECF No. 59) is

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GRANTED. Defendants are directed to file an answer to the Fourth Amended

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Complaint within fourteen days from the date of this Order;

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5. In light of the allegations asserted in the Fourth Amended Complaint, service

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is appropriate for these Defendants on Plaintiff’s due process claim related to

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the periodic reviews of Plaintiff’s SHU placement: Davey, Romo, Oliveira,

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Perez, Campbell, Wilson and Lester;

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6. The Clerk of the Court shall send Plaintiff seven USM-285 forms, seven

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summons, a Notice of Submission of Documents form, an instruction sheet

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and a copy of the Fourth Amended Complaint filed December 10, 2015;

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7. Within thirty (30) days from the date of this order, Plaintiff shall complete and

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return to the Court the Notice of Submission of Documents along with the

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following documents:

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a.

One completed summons for each Defendant listed in Paragraph 5

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above,

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b.

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Paragraph 5 above,

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c.

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September 15, 2016;

One completed USM-285 form for each Defendant listed in

Eight (8) copies of the endorsed Fourth Amended Complaint filed

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8. Plaintiff need not attempt service on Defendants and need not request waiver

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of service. Upon receipt of the above-described documents, the Court shall
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direct the United States Marshal to serve the above-named Defendants

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pursuant to Federal Rule of Civil Procedure 4 without payment of costs; and

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9. The failure to comply with this order will result in dismissal of this action.
IT IS SO ORDERED.

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Dated:

October 17, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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