Ricks v. Kamena et al

Filing 35

ORDER denying 33 Motion to Amend and directing Plaintiff to file opposition or statement of non-opposition to 32 MOTION for SUMMARY JUDGMENT signed by Magistrate Judge Barbara A. McAuliffe on 11/7/2017. (Filing Deadline: 12/11/2017). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT K. RICKS,

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Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
TO AMEND

v.

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Case No. 1:15-cv-00715-BAM (PC)

KAMENA, et al.,

(ECF No. 33)

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ORDER DIRECTING PLAINTIFF TO FILE
OPPOSITION OR STATEMENT OF NONOPPOSITION TO MOTION FOR SUMMARY
JUDGMENT

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(ECF No. 32)

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THIRTY (30) DAY DEADLINE

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Defendants.

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Plaintiff Scott K. Ricks (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against

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Defendant Kamena for failure to protect Plaintiff from his cellmate’s attack on January 13, 2014,

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and for deliberate indifference to his serious medical need following the attack. (ECF No. 18.)

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I.

Procedural Background

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On February 24, 2017, Plaintiff filed a motion to amend the complaint solely with respect

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to damages. (ECF No. 24.) The Court granted the motion on April 19, 2017, and directed

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Plaintiff to file an amended complaint limited to the revision of his damages claim. (ECF No. 25.)

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Plaintiff failed to timely file an amended complaint. On June 6, 2017, the Court issued an order
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to show cause why this action should not be dismissed for failure to obey a court order and failure

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to prosecute. (ECF No. 26.)

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On June 20, 2017, Plaintiff filed a motion to continue proceedings, stating that he believed

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he did not need to file an amended complaint because Defendant’s counsel was aware of his

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timely motion to amend solely the amount of damages. In addition, Plaintiff stated that his

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institution refused to provide him with legal materials or access to the law library. (ECF No. 27.)

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The Court discharged the order to show cause and directed Defendant Kamena to file a response.

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(ECF No. 28.)

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Counsel for Defendant filed a declaration on July 10, 2017, stating that he made no

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representation to Plaintiff that his acknowledgment of the motion to amend was a substitute for

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compliance with the Court’s order. (ECF No. 29.) Defense counsel further stated that he was

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informed that Plaintiff had full access to his legal property, had received indigent supplies twice

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in June 2017, had attended law library on approximately a dozen occasions, and did not attend on

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approximately a dozen other dates in the same time period. (Id.) Plaintiff did not file a reply.

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The Court granted Plaintiff a final opportunity to file a first amended complaint or to

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affirmatively notify the Court that he wished to proceed only on the damages pled in the

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complaint filed on May 8, 2015. (ECF No. 30.)

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Upon Plaintiff’s failure to file a first amended complaint or a response, on September 11,

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2017, the Court ordered that this action proceed only on the cognizable claims and damages pled

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in the original complaint filed on May 8, 2015. (ECF No. 31.)

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On October 2, 2017, Defendant Kamena filed a motion for summary judgment on the

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grounds that Plaintiff’s failure to protect and deliberate indifference to medical treatment claims

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are unsupported by any admissible evidence, and Defendant Kamena is entitled to qualified

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immunity. (ECF No. 32.) Plaintiff’s opposition was due on or before October 26, 2017.

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On October 6, 2017, Plaintiff filed the instant motion to amend pleadings without having

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to file an amended complaint. (ECF No. 33.) Defendant filed an opposition on October 19, 2017.

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(ECF No. 34.) Plaintiff did not file a reply, and the deadline to file a reply has expired. The

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motion is deemed submitted. Local Rule 230(l).
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II.

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In his renewed motion to amend, Plaintiff again asserts his institution refuses to provide

Motion to Amend

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him with the legal supplies needed to litigate this action. Plaintiff states that in the twenty months

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he has been housed at Salinas Valley State Prison, he has been issued exactly two used pens and

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exactly thirty pages of blank typing paper. In addition, Plaintiff again states that the facility law

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library does not contain any legal print materials, and only provides duplication services, a

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stapler, and legal mailing envelopes. Plaintiff argues that it is impossible for him to file an

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amended complaint. (ECF No. 33.)

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In opposition, Defendant argues that Plaintiff has not demonstrated good cause sufficient

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to explain his failure to comply, for six months, with the Court’s order granting leave to amend.

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In addition, Defendant argues that there is strong evidence of bad faith given that Plaintiff’s

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motion to amend was filed four days after Defendant’s motion for summary judgment, and the

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granting of leave to amend at this time would be prejudicial. (ECF No. 34.)

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A. Legal Standard
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course at any time before a responsive pleading is served.

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Otherwise, a party may amend only by leave of the court or by written consent of the adverse

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party. Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal and leave to amend shall be freely given

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when justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951

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(9th Cir. 2006) (citation and quotation omitted).

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However, courts “need not grant leave to amend where the amendment: (1) prejudices the

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opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is

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futile.” Id. These factors do not carry equal weight. Prejudice is the most important factor to

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consider. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).

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B. Discussion
The Court initially granted Plaintiff’s motion to amend the complaint, solely with respect

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to damages, on April 19, 2017. (ECF No. 25.) In the five months between that order and the

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Court’s September 11, 2017 order that this action shall proceed on the complaint filed May 8,
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2015, the Court provided Plaintiff with multiple opportunities to file a first amended complaint.

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(See ECF Nos. 26, 30.)

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While Plaintiff has argued that he was not provided with the paper and pens needed to file

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a first amended complaint, since the Court’s April 19, 2017 order, he has filed a motion to

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continue proceedings and the instant motion to amend, totaling thirty (30) pages. (See ECF Nos.

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27, 33.) Plaintiff’s original complaint was twenty-five (25) pages in length. (See ECF No. 1.)

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Moreover, Plaintiff has stated that the law library, despite its limitations, provides duplication

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services. (ECF No. 33, pp. 7, 8.) Given the limited nature of the amendment, Plaintiff could have

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provided the Court with a photocopy of the original complaint, with the alterations noted.

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Plaintiff did not do so.
In this case, the Court declines to find bad faith. Although Defendant is correct that

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Plaintiff’s renewed motion to amend was docketed four days following the filing of the motion

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for summary judgment, the proof of service is dated October 1, 2017, one day prior to the motion

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for summary judgment. Pursuant to the prison mailbox rule, a pleading filed by a pro se prisoner

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is deemed to be filed as of the date the prisoner delivered it to the prison authorities for mailing to

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the court clerk. See Houston v. Lack, 487 U.S. 266, 270 (1988); Douglas v. Noelle, 567 F.3d

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1103, 1108–09 (9th Cir. 2009) (mailbox rule articulated in Houston applies to civil rights

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actions). Thus, contrary to Defendant’s assertions, Plaintiff’s motion was filed prior to the

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motion for summary judgment, and the filing does not indicate a dilatory motive.

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However, the Court finds that prejudice to the Defendant here warrants the denial of

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Plaintiff’s motion. Plaintiff was provided multiple opportunities and extensions of time to file a

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first amended complaint, and he has failed to do so. Plaintiff’s explanation that he lacks

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sufficient legal materials to file the amended complaint is unpersuasive. Moreover, the filing of

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an amended complaint at this juncture would cause undue delay, given the filing of Defendant’s

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motion for summary judgment.

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III.

Motion for Summary Judgment

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As noted above, Defendant Kamena filed a motion for summary judgment on October 2,

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2017. Fed. R. Civ. P. 56; (ECF No. 32.) Plaintiff was provided with notice of the requirements
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for opposing a motion for summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012);

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Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.1988); Klingele v. Eikenberry, 849 F.2d 409, 411–

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12 (9th Cir.1988). (ECF No. 32-1.) Plaintiff’s opposition was due within twenty-one (21) days

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of service of Defendant’s motion. More than thirty (30) days have passed, but Plaintiff has not

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filed an opposition or statement of non-opposition to the motion. Plaintiff also has not otherwise

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communicated with the Court regarding the pending motion for summary judgment.

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IV.

Conclusion and Order

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Based on the foregoing, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion for leave to amend his complaint, (ECF No. 33), is DENIED;

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2. Pursuant to Local Rule 230(l), Plaintiff is DIRECTED to file an opposition or a

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statement of non-opposition to Defendant’s motion for summary judgment (ECF No.

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32) within thirty (30) days; and

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3. Plaintiff is warned that the failure to comply with this order will result in

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dismissal of this action, with prejudice, for failure to prosecute and failure to

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obey a court order.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 7, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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