Pasillas, et al. v. State of California, et al.

Filing 21

ORDER denying 9 Motion to Dismiss and granting 14 Motion to Amend the Complaint signed by Magistrate Judge Erica P. Grosjean on 10/2/2017. (Amended Complaint due within 14-Days). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SILVIA P. VALDEZ, individually and as
successor-of-interest on behalf of OMAR
PASILLAS; ALBERADO PASILLAS,
individually and as successor-of-interest on
behalf of OMAR PASILLAS,

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Plaintiff,
v.
STATE OF CALIFORNIA, a government
entity; CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, a government entity,
and DOES 1 through 10,
Defendants.

Case No. 1:17-CV-00712-DAD-EPG
ORDER DENYING DEFENDANTS STATE OF
CALIFORNIA AND CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION MOTION TO DISMISS;
AND GRANTING PLAINTIFFS’ MOTION
FOR LEAVE TO AMEND COMPLAINT TO
DISMISS DEFENDANTS STATE OF
CALIFORNIA AND CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION AND TO SUBSTITUTE
DOE DEFENDANTS
(ECF Nos. 9, 14)

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On May 22, 2017, Plaintiffs filed the complaint in this action alleging: (1) deliberate

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indifference to a serious medical condition in violation of the Eighth and Fourteenth Amendments

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against all defendants; (2) cruel and unusual punishment in violation of the Eighth and Fourteenth

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Amendments against all defendants; (3) municipal liability against the State of California (“the

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State”); (4) negligence against all defendants; (5) failure to train against California Department of

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Corrections and Rehabilitation (“CDCR”) and the State; and (6) wrongful death against all

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defendants. (ECF No. 1.) On June 27, 2017, CDCR and the State moved to dismiss this action on

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the ground that the Court lacks subject matter jurisdiction because CDCR and the State are

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immune from suit under the Eleventh Amendment. (ECF No. 9.) On August 4, 2017, Plaintiffs

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filed a motion for leave to amend the complaint to dismiss the State and CDCR. (ECF No. 14.)

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Plaintiff also seeks to substitute R. N. N. J. Milburn as Doe no. 1, LPT Brady as Doe no. 2, R.N.

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Bucaro as Doe no. 3, Dr. Savage as Doe no. 4, Correctional Officer Boone as Doe no. 5, and

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Correctional Officer Vasquez as Doe no. 6. Id. On August 18, 2017, CDCR and the State filed a

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notice of non-opposition to Plaintiffs’ motion. (ECF No. 16.) Now before the Court are Plaintiffs’

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and Defendants’ respective motions.

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Federal Rule 15(a) provides that leave to file an amendment shall be freely given when

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justice so requires. Federal policy strongly favors determination of cases on their merits. This

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policy is to be applied with Aextraordinary liberality.@ Morongo Bank of Mission Indians v. Rose,

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893 F.2d 1074, 1079 (9th Cir. 1990). The role of pleadings is limited and leave to amend the

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pleadings is freely given unless the opposing party makes a showing of undue prejudice or bad

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faith or dilatory motive on the part of the moving party. Foman v. Davis, 371 U.S. 178, 182

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(1962). Furthermore, pursuant to Fed. R. Civ. P. 41(a)(1), a plaintiff may voluntarily dismiss an

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action without a court order before the opposing party serves either an answer or a motion for

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summary judgment. See Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995) (“Even if the

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defendant has filed a motion to dismiss, the plaintiff may terminate his action voluntarily by filing

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a notice of dismissal under Rule 41(a)(1).”).

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Defendants do not oppose Plaintiffs’ motion. Accordingly, based on the foregoing, IT IS
ORDERED THAT:

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1. Plaintiffs’ motion for leave to file a First Amended Complaint is granted;

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2. No later than fourteen (14) days from the date this Order is filed, Plaintiffs shall file the

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proposed First Amended Complaint which is attached to the instant motion;
3. Defendants State of California and California Department of Corrections and
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Rehabilitation are voluntarily dismissed from this action;
4. Defendants State of California and California Department of Corrections and
Rehabilitation’s motion to dismiss is denied as moot;
5. No later than sixty (60) days from the date this Order is filed, Plaintiffs shall serve process

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upon Defendants R. N. N. J. Milburn, LPT Brady, R.N. Bucaro, Dr. Savage, Correctional

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Officer Boone, and Correctional Officer Vasquez.

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IT IS SO ORDERED.
Dated:

October 2, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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