Gallardo v. Sherman et al

Filing 55

ORDER DENYING Plaintiff's Motion to Amend the Complaint and Request for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 1/15/2019. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANGEL LUIS GALLARDO,

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Plaintiff,

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v.
STU SHERMAN, et al.,

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Defendants.

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Case No. 1:17-cv-00390-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION TO
AMEND THE COMPLAINT AND REQUEST FOR
APPOINTMENT OF COUNSEL
[ECF Nos. 48, 51]

Plaintiff Angel Luis Gallardo is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s motion to submit an amended complaint and request

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for appointment of counsel, filed on November 9, 2018, and Plaintiff’s motion to amend the

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complaint, filed on December 17, 2018.

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I.

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RELEVANT BACKGROUND
This action is proceeding against Defendants M. Garcia, J. Reyes, and D. Martin for deliberate

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indifference to a serious medical need and intention infliction of emotional distress.1
On November 27, 2017, Defendants Martin and Reyes filed an answer to the operative

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complaint. On November 29, 2017, Defendant Garcia filed an answer to the operative complaint.

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On December 5, 2017, the Court issued the discovery and scheduling order.

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On July 18, 2018, after an unsuccessful settlement conference, the Court issued an amended

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discovery and scheduling order, setting the deadline to amend the pleadings as November 5, 2018.

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As previously stated, on November 9, 2018, Plaintiff filed a motion to submit an amended

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complaint and request for appointment of counsel, along with a proposed third amended complaint.

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On December 17, 2018, Plaintiff filed a motion to amend the complaint.
Defendant Garcia filed an opposition on November 21, 2018.

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II.

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DISCUSSION

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A.

Motion to Amend Complaint

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Contrary to Defendant Garcia’s argument, Plaintiff’s motion to amend appears timely under

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the Court’s amended scheduling order. Although Plaintiff did not attach a separate proof of service

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reflecting the date the motion was served, it is nonetheless self-dated by Plaintiff as October 28, 2018,

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and it was filed in the Court on November 9, 2018 (just four days after the deadline expired).

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Considering Plaintiff’s incarceration status, the Court finds Plaintiff’s motion to be timely filed.

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Therefore, Rule 15, and not Rule 16, applies. That said, for the reasons explained below, Plaintiff’s

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motion must be denied.

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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 twenty-one days after serving, or if a response was filed, within

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twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may

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Defendants Martin and Reyes are represented by Deputy Attorney General Lucas Hennes, and Defendant Garcia is
represented by Lynne Stocker, Esq.

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amend only by 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)(2).

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Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’”

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AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.

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Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices

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

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futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not

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bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);

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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007). The burden to demonstrate prejudice falls upon the party opposing the amendment. DCD

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Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing

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of any of the remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave

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

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undue delay alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d

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752, 758 (9th Cir. 1999).

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As an initial matter, the Court’s deadline to amend the pleading did not give Plaintiff the

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automatic right to amend his complaint. Plaintiff seeks to add allegations that Defendants “falsified

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records.” Plaintiff contends that the second amended complaint does not add new allegations, as the

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allegations are “written up” on the grievance form and he is just clarifying his complaint. The

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additional allegations set forth in Plaintiff’s proposed third amended complaint (ECF No. 49), are new

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and additional allegations not set forth in the operative second amended complaint. However, the new

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allegations fail to give rise to a cognizable constitutional violation, and amendment is futile. See, e.g.,

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Ellis v. Foulk, No. 14-cv-0802 AC P, 2014 WL 4676530, at *2 (E.D.Cal. Sept. 18, 2014) (“Plaintiff’s

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protection from the arbitrary action of prison officials lies in ‘the procedural due process requirements

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as set forth in Wolff v. McDonnell.’”) (citing Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984));

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Solomon v. Meyer, No. 11-cv-02827-JST (PR), 2014 WL 294576, at *2 (N.D.Cal. Jan. 27, 2014)

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(“[T]here is no constitutionally protected right to be free from false disciplinary charges.”) (citing

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Chavira v. Rankin, No. C 11-5730 CW (PR), 2012 WL 5914913, at *1 (N.D.Cal. Nov. 26, 2012)
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(“The Constitution demands due process, not error-free decision-making.”)); Johnson v. Felker, No.

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1:12-cv-02719 GEB KJN (PC), 2013 WL 6243280, at *6 (E.D.Cal. Dec. 3, 2013) (“Prisoners have no

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constitutionally guaranteed right to be free from false accusations of misconduct, so the mere

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falsification of a [rules violation] report does not give rise to a claim under section 1983.”) (citing

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Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) and Freeman v. Rideout, 808 F.2d 949, 951-53

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(2d. Cir. 1986)). Accordingly, Plaintiff’s motion to amend the complaint is denied.

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B.

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Plaintiff seeks appointment of counsel because if the case goes to trial he change of prevailing

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Request for Appointment of Counsel

is “very slim” based on his incarceration.

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As Plaintiff has been previously informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain

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exceptional circumstances the court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases.

In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success on the

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merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the

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legal issues involved.” Id. (internal quotation marks and citations omitted).

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The test for exceptional circumstances requires the Court to evaluate the Plaintiff’s likelihood

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of success on the merits and the ability of the Plaintiff to articulate his claims pro se in light of the

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complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish exceptional

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circumstances that would warrant a request for voluntary assistance of counsel. In the present case,

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the Court does not find the required exceptional circumstances. Accordingly, Plaintiff’s request for

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appointment of counsel shall be denied.
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III.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motions to amend the complaint are denied; and

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Plaintiff’s request for appointment of counsel is denied.

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IT IS SO ORDERED.

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Dated:

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January 15, 2019
UNITED STATES MAGISTRATE JUDGE

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