Reamel v. Harrington et al

Filing 63

FINDINGS and RECOMMENDATIONS recommending that 56 Plaintiff's Motion for Leave to File a Second Amended Complaint be DENIED re 12 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Erica P. Grosjean on 3/27/2018. Referred to Judge O'Neill. Objections to F&R due within twenty-one (21) days. (Jessen, A)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

REAMEL CURTIS,
Plaintiff,

13
14
15

vs.

1:15-cv-00553-LJO-EPG (PC)
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S MOTION FOR LEAVE
TO FILE A SECOND AMENDED
COMPLAINT BE DENIED

KELLI HARRINGTON, et al.,
Defendants.

16

(ECF No. 56)
OBJECTIONS, IF ANY, DUE IN 21 DAYS

17
18
19
20
21
22
23
24
25
26
27

I.

INTRODUCTION

Curtis Reamel (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. ' 1983. This case is proceeding on Plaintiff’s
Eighth Amendment claim for failure to protect against Defendants Gonzalez and Bugarin
(“Defendants”). (ECF Nos. 13, 15, 20). Plaintiff’s First Amended Complaint, (ECF No. 12),
alleges that he was wrongfully transferred to the “3-A” facility at California State PrisonCorcoran (“CSP-Corcoran”), where Plaintiff’s documented enemy (inmate Butler) was being
housed. Plaintiff was later assaulted and injured by inmate Butler.
Presently before the Court is Plaintiff’s motion for leave to file a Second Amended
Complaint. (ECF No. 56.) Defendants Gonzalez and Bugarin have filed an opposition to the

28
1

1

motion. (ECF No. 59.) For the following reasons, it is RECOMMENDED that Plaintiff’s

2

motion for leave to file a Second Amended Complaint (ECF No. 56) be DENIED.

3

II.

4

Plaintiff filed the Complaint commencing this action on April 10, 2015. (ECF No. 1.)

5

The Court screened the Complaint on April 12, 2016 pursuant to its authority in 28 U.S.C. §

6

1915A, and granted Plaintiff leave to file a First Amended Complaint (“1AC”). (ECF No. 9.)

7

In the Order, Plaintiff was given specific instructions regarding the procedures for filing an

8

amended complaint. (Id. at 11-12.)

9

PROCEDURAL BACKGROUND

On June 17, 2016, Plaintiff filed the 1AC. (ECF No. 12.) The Court screened the 1AC

10

on September 9, 2016, and found cognizable claims against Defendants Bugarin and Gonzales

11

for failure to protect in violation of the Eighth Amendment to U.S. Constitution. (ECF No. 13.)

12

The Court again granted Plaintiff leave to file an amended complaint or file notice electing to

13

stand on the 1AC subject to recommendations to the assigned District Judge. (Id.) Plaintiff

14

filed a notice electing to stand on the 1AC. (ECF No. 14.) Findings and recommendations

15

consistent with the Court’s screening order, (ECF No. 15), were adopted on December 6, 2016.

16

(ECF No. 20.)

17

On May 2, 2017, non-expert discovery opened and an initial scheduling conference was

18

held in this case. (ECF No. 32.) During the conference,1 counsel for Defendants raised the issue

19

that Plaintiff has brought this case against the wrong defendants and amendment to the

20

complaint was required for Plaintiff to continue in good faith. Defense counsel stated that their

21

initial disclosures to Plaintiff would indicate the names of the person(s) responsible for his

22

transfer to Facility 3-A. Plaintiff responded, “I don’t think that’s correct at all. I am not going

23

to amend my complaint. I am going to just follow through with… I think speedy trial would be

24

the best thing right now.” Defense counsel suggested that Plaintiff reconsider in the interest of

25
26
27
28

1

While there is not a transcript for this conference at this time, audio of the proceedings were recorded. When
proceedings have been recorded as the official record by electronic sound recording equipment, parties may
choose to purchase copies of the electronic sound recording files, from the clerk of court in lieu of transcript for
their own use. Orders for audio recordings should be submitted to the clerk’s office on Form CAED 436 (Audio
Recording Order).

2

1

not wasting his time, the Court’s time, and state resources. The Court also discussed this issue

2

with Plaintiff, suggesting that if what defense counsel says is true, he may want to consider

3

amending his complaint to add the correct people or consider propounding discovery to learn

4

who was involved with his transfer. Plaintiff responded, “No, I would like to go forward… I

5

have the right people.” Following the scheduling conference, the Court set deadlines for non-

6

expert discovery (November 17, 2017) and dispositive motions (December 20, 2017). (ECF

7

No. 34.)

8

On June 14, 2017, Defendants Bugarin and Gonzales filed a motion for summary

9

judgment. (ECF No. 35.) Defendant Bugarin requested summary judgment in his favor,

10

arguing that he was not personally involved in Plaintiff’s transfer to Facility 3-A. (ECF No. 35-

11

3 at 7-8.) The undisputed material facts section of the motion stated:

12
13
14
15
16
17

12. On April 5, 2012, Officer Noland requested that Plaintiff be transferred to
Facility 3-A. (Declaration of J. Bugarin, ¶ 7; Ex. C.)
13. On April 5, 2012, Sergeant Rasley approved the pending request to transfer
Plaintiff to Facility 3-A. (Declaration of J. Bugarin, ¶ 7; Ex. C.)
(ECF No. 35-2 at 2 ¶¶ 12-13.)
When Plaintiff failed to file a timely response to the motion for summary judgment, the

18

Court entered an Order to show cause why judgment should not be entered in favor of

19

Defendants Bugarin and Gonzales. (ECF No. 37.) After the Order to show cause was

20

discharged and an extension of time was granted, (ECF No. 39), Plaintiff filed a response to the

21

motion for summary judgment on September 18, 2017, (ECF No. 44). The response argued

22

with supporting evidence that Defendant Bugarin was personally involved with his transfer

23

because Bugarin personally escorted him to Facility 3-A and was thus liable. (Id. at 3.)

24

The Court held a telephonic discovery and status conference on September 12, 2017.

25

For the first time, Plaintiff expressed an intention to amend his complaint in order to add the

26

individuals who recommended his transfer to Facility 3-A (Noland and Rasley). Plaintiff stated

27

that these individuals were identified in Defendants’ pending motion for summary judgment,

28

which was filed on June 14, 2017. (ECF No. 35.)
3

1

On September 18, 2017, Plaintiff filed a two-page document titled “motion amended

2

civil rights complaint under 42 U.S.C. 1983.” (ECF No. 43.) On page 1, the document stated

3

that “Plaintiff would like to add additional defendants to suit, Wade Rasley (Sergeant) and

4

Tracy Noland (Correctional Officer).” (Id. at 1.) On page 2, the document stated:

5
6
7
8
9

On 4.5.2012 Plaintiff was cleared to move from 3B facility to 3A facility which
resulted in Plaintiff’s assault on 4.26.12 by Sergeant Wade Rasley and the move
was requested by Correctional Officer Tracy Noland. In addition to Counselor
J. Burgarin who personally escorted me to 3A and SGT Gonzales who failed to
protect I would like to add the two more defendants.
(Id. at 2.) This filing did not restate the allegations from the 1AC that led the Court to find

10

cognizable claims for failure to protect against Defendants Bugarin and Gonzales. In fact, the

11

filing did not even mention that Plaintiff was attacked by another inmate. Plaintiff did not

12

attach a proposed Second Amended Complaint to the document.

13

On November 20, 2017, the Court denied Plaintiff’s motion to amend. (ECF No. 48.)

14

The Court reasoned that the document Plaintiff filed “appears to be a piecemeal amendment to

15

the First Amended Complaint, which is improper. See Rhodes v. Robinson, 621 F.3d 1002,

16

1005 (9th Cir. 2010) (‘As a general rule, when a plaintiff files an amended complaint, ‘[t]he

17

amended complaint supersedes the original, the latter being treated thereafter as non-existent.’

18

Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967)’).” (Id. at 1-2.) The Court further explained that

19

“[i]f Plaintiff wishes to amend, Local Rules require that he must file a motion for leave to file a

20

Second Amended Complaint, attach the proposed complaint as an exhibit, and the proposed

21

amendment must be complete in itself without reference to the prior or superseded pleading.

22

CAED Local Rules 137, 220.” (Id. at 2.) The Court also gave Plaintiff detailed instructions

23

regarding the procedures for filing a motion for leave to file a Second Amended Complaint

24

(“2AC”). (Id.)

25

In a subsequent telephonic status conference on November 27, 2017, Plaintiff again

26

announced his intention to file a motion for leave to file a 2AC. The Court informed Plaintiff

27

that the case had already proceeded late into the discovery schedule and any further delay

28
4

1

would likely lessen the likelihood that a motion for leave to file an amended complaint would

2

be granted. Plaintiff indicated that he would file the motion to amend immediately.

3

Two months later, findings and recommendations (“F&R”) were entered on January 24,

4

2018 recommending that Defendants Bugarin and Gonzales’ motion for summary judgment be

5

denied. (ECF No. 54.) The F&R noted the history of this case and that Plaintiff had not yet

6

filed a motion for leave to file a 2AC. (Id. at 3.)
PLAINTIFF’S PROPOSED SECOND AMENDED COMPLAINT

7

III.

8

On February 12, 2018, Plaintiff filed a motion for leave to file a 2AC. (ECF No. 56.)

9

The motion noted that it was based upon the Court’s November 20, 2017 Order, but gave no

10

reason for waiting two and a half months to file the motion. (Id. at 1.) Plaintiff’s stated intent

11

was to add the additional defendants that authorized his transfer to Facility 3-A. (Id. at 1-2.)

12

The proposed 2AC alleges that he was housed in 3-B pending transfer to another prison.

13

(ECF No. 57 at 5.) However, Defendant Bugarin, at the requests of Sergeant W. Rasley and

14

Correctional Officer T. Noland, transferred Plaintiff to Facility 3-A, where Plaintiff’s known

15

documented enemy was housed. (Id.) Plaintiff states in conclusory fashion that Rasley and

16

Noland “knew of [Plaintiff’s] security concerns prior to their request because it is documented

17

and standard protocol to ensure the safety of staff and prisoner[s].” (Id. at 5-6.) Plaintiff further

18

states that Rasley and Noland’s intention was to provoke staged fights amongst prisoners. (Id.

19

at 6.)

20

In addition to Defendants Rasley and Noland, Plaintiff also alleges a new claim for

21

failure to protect against unknown Unit Classification Committee (U.C.C.) members 1-3. (Id.)

22

Plaintiff alleges that the U.C.C. members also had access to Plaintiff’s known enemy

23

information, but failed to protect him by releasing him to “program” in Facility 3-A with

24

inmate Butler. (Id.) Plaintiff names the U.C.C. members as Jane/John Does 1-3, “pending

25

discovery order to ascertain their true identity.” (Id. at 6-7.)

26

Also for the first time in this litigation, Plaintiff’s proposed 2AC alleges a second claim

27

alleging that all current and newly-added defendants engaged in a conspiracy to violate his

28

constitutional rights by their multiple acts/omissions that led to Plaintiff being housed with a
5

1

known enemy in Facility 3-A. (Id. at 7.) Plaintiff alleges that the defendants knew this transfer

2

would result in a violent confrontation, and a conspiracy can be inferred by the defendants’

3

multiple actions/omissions. (Id.)

4

IV.

5

“Rule 15(a)(2) instructs courts to “freely give leave [to amend] when justice so

6

requires.” Fed. R. Civ. Pro. 15(a)(2); C.F. v. Capistrano Unified Sch. Dist., 654 F.3d 975, 985

7

(9th Cir. 2011); Zucco Partners, LLC v. Digimarc Ltd., 552 F.3d 981, 1007 (9th Cir. 2009).

8

“This policy is to be applied with extreme liberality.” C.F., 654 F.3d at 985; Eminence Capital,

9

LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “This liberality in granting leave to

10

amend is not dependent on whether the amendment will add causes of action or parties.” DCD

11
12

MOTION FOR LEAVE TO AMEND LEGAL STANDARD

Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). “Courts may decline to grant
leave to amend only if there is strong evidence of ‘undue delay, bad faith or dilatory motive on

13
the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
14
15
16
17
18
19

undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of
amendment, etc.’” Sonoma Cty. Ass'n of Retired Employees v. Sonoma Cty., 708 F.3d 1109,
1117 (9th Cir. 2013) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962)). In the Ninth Circuit, these factors are commonly referred to as the “Foman factors.”
See Eminence, 316 F.3d at 1052.

20

V.

DISCUSSION

21

Defendant Bugarin and Gonzales have filed an opposition to the motion for leave to file

22

a 2AC based upon the untimeliness of the motion (undue delay) and the potential prejudice

23

caused if amendment is permitted. (ECF No. 59.)

24

A. Undue Delay

25

The Court finds that Plaintiff unduly delayed in requesting his amendment.

26

The need for amendment to the complaint was discussed in detail on the record in the

27

May 2, 2017 initial discovery conference. Review of Defendants’ initial disclosures produced

28

prior to the conference would have revealed the identity of the individuals responsible for
6

1

Plaintiff’s transfer to Facility 3-A. At the May 2, 2017 conference, however, Plaintiff indicated

2

that, “No, I would like to go forward… I have the right people.”

3

A month later, on June 14, 2017, Defendants Bugarin and Gonzales filed a motion for

4

summary judgment, which cited to evidence indicating that third-parties Sergeant Rasley and

5

Officer Noland were responsible for Plaintiff’s transfer to Facility 3-A. Plaintiff did not file a

6

timely response the motion. When Plaintiff did respond three months later, on September 18,

7

2017, he stated that Defendant Bugarin was liable and did not mention Rasley and Noland.

8

The first time that Plaintiff expressed his intention to amend his complaint to add

9

Rasley and Noland as defendants was during a telephonic discovery and status conference held

10

on September 12, 2017. Even though Plaintiff had previously filed an amended complaint in

11

this case and should have been aware of the appropriate procedure for filing an amended

12

complaint, Plaintiff elected to file a 2-page piecemeal document that did not contain

13

sufficiently detailed allegations to state claims against any defendant. On November 20, 2017,

14

the Court again gave Plaintiff detailed instructions for filing an amended complaint. (ECF No.

15

48.) The need for amendment was discussed again directly with Plaintiff in a telephonic status

16

conference on November 27, 2017. Plaintiff indicated he would seek leave to amend

17

immediately.

18

However, Plaintiff waited until February 2018 to request leave to file a 2AC and gave

19

no reason in the motion for waiting as long as he did. In a telephonic conference held on

20

March 7, 2018, Plaintiff indicated only that the process of amendment was difficult. In light of

21

Plaintiff’s prior successful amendment to the complaint and prior refusal to add the new

22

defendants, the Court does not find this reason convincing so as to justify a delay of over nine

23

months to properly amend his complaint.

24

The Court has additional concerns about the proposed 2AC. As described above, the

25

proposed 2AC contains conclusory allegations against Rasley, Noland and the unknown

26

defendants concerning the knowledge they had at the time of the decision was made to transfer

27

Plaintiff to Facility 3-A. These conclusory allegations are subject to dismissal under the federal

28

pleading standard. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949–50, 173 L.
7

1

Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965,

2

167 L. Ed. 2d 929 (2007), for the principle that “[t]hreadbare recitals of the elements of a cause

3

of action, supported by mere conclusory statements, do not suffice” and the court is “not bound

4

to accept as true a legal conclusion couched as a factual allegation”). Permitting the filing of

5

the 2AC here would therefore cause further undue delay in the form of the need for Plaintiff to

6

file additional amendments to cure his pleading defects.2

7

In these circumstances, the Court finds undue delay by the Plaintiff in seeking

8

amendment to his complaint. Undue delay, while relevant, will not by itself justify denial of

9

leave to amend. See, e.g., Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th

10

Cir. 1990) (“The delay of nearly two years, while not alone enough to support denial, is

11

nevertheless relevant. Loehr v. Ventura County Community College Dist., 743 F.2d 1310,

12

1319–20 (9th Cir.1984)”); United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981)

13

(“Specifically, we noted that delay alone no matter how lengthy is an insufficient ground for

14

denial of leave to amend”); Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973)

15

(reversing trial court decision to deny leave to amend after unjustified five-year delay and

16

noting that “we know of no case where delay alone was deemed sufficient grounds to deny a

17

Rule 15(a) motion to amend”).

18

Rather, the undue delay must usually be coupled with another factor, such as bad faith

19

or undue prejudice, to support denial of leave to amend. See, e.g., AmerisourceBergen Corp. v.

20

Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006) (denial of leave to amend appropriate

21

where fifteen months passed between the time movant first discovered a new theory and the

22

amendment would have caused prejudice in the form of potentially high, additional litigation

23

costs by requiring the parties to scramble to ascertain facts concerning new theory, even though

24

eight months remained in the discovery schedule); Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799

25

(9th Cir. 1991) (denial of leave to amend proper where leave to amend not requested until

26
27
28

2

Denying leave to amend is also appropriate where the amendment would be futile or where the amended
complaint would be subject to dismissal. Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (citing Reddy v.
Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538
(9th Cir. 1989)).

8

1

“eight months after the district court granted summary judgment against it, and nearly two

2

years after filing the initial complaint” and where non-movant would have been “unreasonably

3

prejudiced by the addition of numerous new claims so close to trial”); Jackson v. Bank of

4

Hawaii, 902 F.2d 1385, 1387-88 (9th Cir. 1990) (denial of leave to amend appropriate where

5

movant informed the court of intention to file an amended complaint in March 1987, but

6

delayed offering amendment until May 1988 and delay caused prejudice in the form of a need

7

to re-conduct discovery); Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981)

8

(“Ordinarily, leave to amend pleadings should be granted regardless of the length of time of

9

delay by the moving party absent a showing of bad faith by the moving party or prejudice to the

10
11

opposing party”).
B. Prejudice

12

Prejudice to the opposing party is the most important factor in deciding whether to grant

13

or deny leave to amend. Eminence, 316 F.3d at 1052 (citing cases for principle that prejudice is

14

factor carrying the greatest weight in deciding whether to grant leave to amend). Standing

15

alone, the mere addition of new claims and parties does not typically amount to undue

16

prejudice. See DCD, 833 F.2d at 186 (“[The Rule 15(a)] liberality in granting leave to amend is

17

not dependent on whether the amendment will add causes of action or parties”).

18

However, substantial undue prejudice will be found where new theories would alter the

19

nature of the litigation and are alleged late in the discovery schedule or after the discovery

20

window has closed. See, e.g., Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th

21

Cir. 2002) (finding substantial prejudice justifying denial of leave to amend where the

22

“additional causes of action would have required further discovery, which was to close five

23

days after the motion to amend was filed”); Lockheed Martin Corp. v. Network Sols., Inc., 194

24

F.3d 980, 986 (9th Cir. 1999) (finding that a “need to reopen discovery and therefore delay the

25

proceedings supports a district court's finding of prejudice from a delayed motion to amend the

26

complaint”); Solomon v. North Am. Life & Cas. Ins. Co., 151 F.3d 1132, 1139 (9th Cir. 1998)

27

(affirming the denial of leave to amend where leave requested “on the eve of the discovery

28

deadline” and “[a]llowing the motion would have required re-opening discovery, thus delaying
9

1

the proceedings”); Morongo, 893 F.2d at 1079 (affirming district court decision to deny leave

2

to amend where “new claims set forth in the amended complaint would have greatly altered the

3

nature of the litigation and would have required defendants to have undertaken, at a late hour,

4

an entirely new course of defense”).

5

Here, the discovery window closed on November 17, 2017, a settlement conference is

6

scheduled for April 5, 2018, the dispositive motions deadline is set for April 28, 2018, and the

7

jury trial in this case is scheduled for December 11, 2018. Permitting amendment at this late

8

stage would require reopening discovery for an extended period of time to permit the parties to

9

conduct discovery concerning the new defendants and the new theories in the proposed 2AC.

10

Further, Plaintiff’s proposed amended complaint also attempts to add “John/Jane Does 1-3”

11

necessitating the need to conduct third-party discovery to identify additional defendants.

12

Permitting amendment would effectively cancel the settlement conference set for April 5

13

because the addition of the new claim and parties would make it impossible to resolve the

14

litigation. The dispositive motions deadline and trial would also have to be continued if

15

amendment were permitted.

16

Permitting amendment at this time would cause prejudice to the defendants because

17

they have already gone through the entire discovery process in anticipation of filing a

18

dispositive motion concerning the claims in Plaintiff’s 1AC, and Plaintiff’s new claims in the

19

proposed 2AC differ, necessitating additional discovery. This prejudice coupled with

20

Plaintiff’s unjustified delay in requesting amendment when the facts had been known to him

21

early in the case necessitate denial of leave to amend. See, e.g., Lockheed, 194 F.3d at 986

22

(leave to amend properly denied where non-movant prejudiced and when movant had been

23

considering amendment for months but offered no explanation for delay); Swanson v. U.S.

24

Forest Serv., 87 F.3d 339, 345 (9th Cir. 1996) (affirming denial of leave to amend where

25

movant “previously had an opportunity to timely amend its complaint and it failed to do so”);

26

Fid. Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir.

27

1986) (denial of leave to amend appropriate where “the court has already given the plaintiff an

28
10

1

opportunity to amend his complaint” and “factual bases of the claims were known to[movant]

2

long before”).

3

VI.

4

For the foregoing reasons, IT IS HEREBY RECOMMENDED that Plaintiff’s motion

5

CONCLUSION AND RECOMMENDATION

for leave to file a Second Amended Complaint (ECF No. 56) be DENIED.

6

These findings and recommendations are submitted to the United States District Judge

7

assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-

8

one (21) days after being served with these findings and recommendations, any party may file

9

written objections with the court.

Such a document should be captioned “Objections to

10

Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be

11

served and filed within seven (7) days after service of the objections. The parties are advised

12

that failure to file objections within the specified time may result in the waiver of rights on

13

appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan,

14

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

15
16
17

IT IS SO ORDERED.
Dated:

March 27, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
11