Tracye B. Washington v. Stark et al

Filing 36

ORDER REGARDING Plaintiff's 32 Motion to Amend the Complaint signed by Magistrate Judge Stanley A. Boone on 12/18/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRACYE BENARD WASHINGTON,

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Plaintiff,

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v.

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E. STARK, et.al.,

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Defendants.

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Case No.: 1:18-cv-00564-LJO-SAB (PC)
ORDER REGARDING PLAINTIFF’S MOTION
TO AMEND THE COMPLAINT
[ECF No. 32.)

Plaintiff Tracye Benard Washington is appearing pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended

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complaint against Defendants Hicks and Rocha for excessive force in violation of the Eighth

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Amendment.

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Currently before the Court is Plaintiff’s motion to amend the complaint, filed October 22,
2018. (ECF No. 32.) Defendants did not file an opposition.

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I.

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DISCUSSION

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s pleading

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once as a matter of course twenty-one days after serving, or if a response was filed, within twenty-one

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days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend only by

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leave of the court or by written consent of the adverse party, and leave shall be freely given when justice
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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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Amerisource Bergen 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); Owens

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v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The

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burden to demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing of any of the

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remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave to amend.

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

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alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th

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Cir. 1999).

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Defendants filed an answer to the first amended complaint on October 5, 2018. (ECF No. 30.)

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In his motion to amend, Plaintiff indicates that he seeks leave to amend the first amended

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complaint to proceed with a failure to intervene claim against Defendant Hicks “utilizing the same set

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of facts already before the court. Defendant Hicks was the highest ranking officer on the scene of this

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incident, and is the individual who instructed all of the non-sued officers, and defendant H. Rocha, to

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report the area where the incident took place, and ordered that the cell door be opened .…” (Mot. at

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1:21-27.) Plaintiff submits that Defendant Hicks “did not intervene to protect Plaintiff when he was

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(1) drug out of the cell and struck and kicked by the officers under his command, if he did not

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personally participate himself, in the assault.” (Id. at 2:4-7.)

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Prison officials have a duty to take reasonable steps to protect inmates from physical abuse.

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Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.

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2005). A prisoner’s rights can be violated by a prison official’s deliberate indifference by failing to

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intervene. Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995). Deliberate indifference occurs

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where prison officials know of and disregard a substantial risk of serious harm to the plaintiff.
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Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040. However, an officer can only be held liable for

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failing to intervene if he had a realistic opportunity to intervene and failed to do so. Cunningham v.

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Gates, 229 F.3d 1271, 1289-90 (9th Cir. 2000).
Based on a review of the factual allegations in Plaintiff’s first amended complaint, Plaintiff

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states independent claims of excessive force and failure to intervene against Defendant Sergeant

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Hicks. Accordingly, Plaintiff’s motion to amend the complaint to proceed on the failure to intervene

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claim against Defendant Hick is denied as unnecessary. In light of this clarification, Defendant Hicks

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will be granted twenty days from the date of service of this order to file an amended answer, if so

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desired.

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II.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s motion to amend the complaint is denied as unnecessary;

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2.

This action shall proceed on Plaintiff’s first amended complaint against Defendant

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Rocha for excessive force and against Defendant Hicks for excessive force and failure to intervene

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under the Eighth Amendment; and
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Within twenty (20) days from the date of service of this order, Defendant Hicks may

amend the answer, if so desired.

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IT IS SO ORDERED.

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Dated:

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December 18, 2018
UNITED STATES MAGISTRATE JUDGE

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