(PC) Smith v. Parriot et al

Filing 40

ORDER DENYING 36 Plaintiff's Motion for Leave to Amend the Complaint, signed by Magistrate Judge Gary S. Austin on 8/13/2021. (Rivera, O)

Case 1:19-cv-00286-NONE-GSA Document 40 Filed 08/16/21 Page 1 of 11

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAWRENCE CHRISTOPHER SMITH,

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ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND THE
COMPLAINT
(ECF No. 36.)

Plaintiff,

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1:19-cv-00286-NONE-GSA-PC

vs.
BRIAN L. PARRIOT, et al.,

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Defendants.

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I.

BACKGROUND

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Lawrence Christopher Smith (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed the

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Complaint commencing this action on February 14, 2019, in the Sacramento Division of the

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United States District Court for the Eastern District of California. (ECF No. 1.) On March 4,

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2019, the case was transferred to this court. (ECF No. 3.)
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Case 1:19-cv-00286-NONE-GSA Document 40 Filed 08/16/21 Page 2 of 11

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On August 13, 2020, the court screened the Complaint and issued an order requiring

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Plaintiff to either file an amended complaint or notify the court that he is willing to proceed only

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with the claims found cognizable by the court. (ECF No. 21.) On September 10, 2020, Plaintiff

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filed the First Amended Complaint. (ECF No. 22.)

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The court screened the First Amended Complaint and issued findings and

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recommendations on September 22, 2020, recommending that this case proceed only against

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defendants Cantu, W. Gutierrez, and Mattingly for use of excessive force in violation of the

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Eighth Amendment, and that all other claims and defendants be dismissed for Plaintiff’s failure

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to state a claim, without leave to amend. (ECF No. 24.)

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On December 10, 2020, the district judge adopted the findings and recommendations in

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full. (ECF No. 27.) Plaintiff’s claims challenging his guilty finding at the disciplinary hearing

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and his loss of credits were dismissed from this § 1983 case as barred by the decisions in Heck

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v. Humphrey and Edwards v. Balisok, without prejudice to his filing of a petition for writ of

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habeas corpus; Plaintiff’s unrelated claims were dismissed from this action for violation of Rules

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18(a) and 20(a) of the Federal Rules of Civil Procedure, without prejudice to filing new cases

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addressing those claims; all other claims and defendants were dismissed from this case due to

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Plaintiff’s failure to state a claim upon which relief may be granted under § 1983, including

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defendants Lt. Parriot, Kern County Board of Supervisors, Lisa Green, John Doe (Secretary,

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CDCR), Kim Holland, L. Gordon Isen, J. Gutierrez, C/O Richard Cuellar, Patrick Matzen, Lt.

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David Crounse, Lt. T. Kephart, C/O J. Davis, C/O Jon Reimers, and Sgt. R. Cole; and Plaintiff’s

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claims for inadequate medical care, Fourth Amendment violations, conspiracy, due process, false

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reports and retaliation were likewise dismissed from this action due to Plaintiff’s failure to state

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a claim. (Id.)

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The First Amended Complaint was served and defendants Cantu, W. Gutierrez, and

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Mattingly filed an Answer on June 14, 2021. (ECF No. 33.) On June 15, 2021, the court issued

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a Discovery and Scheduling Order setting forth pretrial deadlines for the parties. (ECF No. 35.)

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This case is now in the discovery phase.

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Case 1:19-cv-00286-NONE-GSA Document 40 Filed 08/16/21 Page 3 of 11

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On July 16, 2021, Plaintiff filed a motion for leave to amend the First Amended

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Complaint along with a Request for Judicial Notice, and submitted a proposed Second Amended

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Complaint. (ECF No. 36.) On July 30, 2021, defendants Cantu, W. Gutierrez, and Mattingly

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filed an opposition to Plaintiff’s motion. (ECF No. 37.) The motion is now before the court.

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Local Rule 230(l).

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II.

LEAVE TO AMEND – RULE 15(a)

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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 within: (A) 21 days after serving it, or (B) if the pleading is

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one to which a responsive pleading is required, 21 days after service of a responsive pleading or

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21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ.

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P. 15(a)(1). Otherwise, a party may amend its pleading only with the opposing party’s written

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consent or the court’s leave, and the court should freely give leave when justice so requires. Fed.

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R. Civ. P. 15(a)(2). Here, Plaintiff has previously amended the complaint, and Defendants have

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opposed Plaintiff’s motion for leave to amend. Therefore, Plaintiff requires leave of court to file

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an amended complaint.

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

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is

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insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan,

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Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58

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(9th Cir. 1999)). The factors are not given equal weight and futility alone is sufficient to justify

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the denial of a motion to amend. Washington v. Lowe’s HIW Inc., 75 F.Supp.3d 1240, 1245

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(N.D. Cal. 2014), appeal dismissed (Feb. 25, 2015).

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III.

PLAINTIFF’S PROPOSED SECOND AMENDED COMPLAINT

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Plaintiff is presently incarcerated at Corcoran State Prison, in Corcoran, California. The

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events at issue in the proposed Second Amended Complaint allegedly took place at the California
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Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there in

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the custody of the California Department of Corrections and Rehabilitation (CDCR). Plaintiff

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names as defendants Kamala D. Harris (former Attorney General, State of California), Doe

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Defendant (Secretary, CDCR), Kern County Board of Supervisors, Lisa S. Green (District

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Attorney (D.A.), Kern County), Kim Holland (Warden, California Correctional Institution

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(CCI)), L. Gordon Isen (Deputy D.A., Kern County), J. Gutierrez (Associate Warden, CCI),

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Patrick Matzen (Associate Warden, CCI), Lieutenant (Lt.) Kephardt, Lt. Brian L. Parriot, Lt.

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David Crouse, Sergeant (Sgt.) R. Cole, Sgt. Andres Cantu, Correctional Officer (C/O) Wilfredo

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Gutierrez, C/O James Mattingly, C/O Richard Cuellar, C/O Jon Reimers, and C/O J. Davis

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(collectively, “Defendants”).

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A summary of Plaintiff’s allegations, as titled by Plaintiff, follows:

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Conspiracy

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The defendants have conspired to deny me access to the courts in violation of the First

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Amendment. Based on my initiating the action of Smith v. Allison, 1:10-cv-01814-DAD-JLT

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before this very court a § 1983 suit which was lodged against several state law enforcement

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officials for their transgressions against me while incarcerated at California Substance Abuse

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Treatment Facility and State Prison, transgressions which included the denial of due process

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rights during disciplinary proceedings and deliberate indifference to serious medical needs etc.,

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a complaint and its contentions which later led to the actions of Smith v. Chanelo, 1:16-cv-01356-

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DAD-BAM, Smith v. Knowlton, 1:18-cv-0081-NONE-BAM, Smith v. Weiss, 1:18-cv-00852-

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DAD-BAM, and Smith v. Gibbs, 1:18-cv-00854-DAD-BAM being opened by the court on its

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own volition, that the defendants have offensively conspired to silence my voice before the court

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by denying substantive rights afforded to all under the U.S. Constitution, egregious conduct

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which has primarily rested on the defendants utilizing violence and denying me due process

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rights, the facts of which is pled below in concise paragraphs.

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Excessive Force

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In direct response to a ruling of law entered on the docket for the action of Smith v.

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Allison, et al., 1:10-cv-01814-DAD-JLT (PC) and as a reprisal of an offensive nature based on
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utilization of the Department’s administrative grievance process against correctional staff,

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defendants Cantu, W. Gutierrez, Mattingly, Cole, and Parriot utilized illegal physical force

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against me on February 25, 2015 while conducting their duties as peace officers within the SHU

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complex at CCI.

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Concisely submitted is that upon the conclusion of a disciplinary hearing held against me

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concerning the allegation of my having assaulted defendant Cantu on February 4, 2015 during

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the escort of me back to my assigned cell within housing unit #8 at CCI by defendants W.

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Gutierrez, Mattingly, and Cantu, an escort which was monitored by defendants Parriot, Cole, and

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Cuellar. Defendants W. Gutierrez and Mattingly midway through this escort of me back to my

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assigned cell for no viable penological reasons whatsoever threw me to the ground face first

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where defendants W. Gutierrez, Mattingly, and Cantu along with a few other correctional staff

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members who I cannot identify then began to beat me with their hands, feet, and batons, this

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while I lay on the ground within mechanical restraints defenseless. Based on this offensive

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conduct by the defendants, including defendant Cole prohibiting medical staff from properly

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examining me, I suffered from serious injuries.

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Denial of Due Process/Equal Protection

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In support of their offensive conduct as stated in subsection A of this complaint,

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defendants Cantu, W. Gutierrez, Mattingly, Cole, Parriot, and Cuellar authored a false

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crime/incident report against me for the allegation of my having committed an aggravated battery

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on defendant Cantu by spitting on his face and for the allegation of having assaulted defendant

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W. Gutierrez by attempting to ram him with my shoulder. Further, defendants Davis, Kephart,

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J. Gutierrez, Matzen, Crounse, and Reimers failed to author a report against defendants W.

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Gutierrez, Cantu, Mattingly for their blatant illegal use of force against me. Furthermore,

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defendants Holland, Matzen, and J. Gutierrez besides [illegible] through misconduct the false

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charge of my having committed an aggravated battery on defendant Cantu said defendants along

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with defendant Crounse sustained the charge of my having committed an aggravated battery on

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defendant Cantu during a Department tribunal held for this allegation by denying me the right to

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be heard during the adjudication of this charge against me based on this finding of guilt to which
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Department officials in Sacramento adopted in full and imposed a determinate SHU term for me

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to serve.

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Failures to Act/Deliberate Indifference

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The conduct of the defendants as cited in subsections A and B above are offensive actions

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which were authorized to be committed against me by defendant Doe based on my initiating civil

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actions against the Department’s personnel before this very court. Such a contention warrants

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review before the court, based on strong circumstantial evidence and defendant Doe’s repeated

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failures to act, this despite being provided with sufficient notice prior to or and after the date of

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February 25, 2015 of the abuses of process repeatedly being utilized against me by the

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Department’s personnel that he was charged with leading, notification which was provided to

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defendant Doe through the Department’s litigation coordinator and through the Department’s

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administrative grievance process, as defendant Doe was the ultimate authority in adjudicating all

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appeals submitted by inmates to the Department’s administrative grievance system and more, the

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Department’s disciplinary system itself was defendant Doe’s sole domain as well.

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Upon notification of the defendants transgressions against me as cited in subsections A

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and B above, notifications that were provided to defendants Green and Isen through

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administrative channels between CDCR and the Kern County District Attorney’s office and by

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myself personally on several occasions, defendants Green and Isen failed to act, choosing instead

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not only to enforce a code of silence on behalf of the above named defendants but defendants

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Green and Isen further went and initiated malicious prosecutions against me for my complaints,

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conduct by defendants Green and Isen which has made defendant Harris liable in this action for

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at least the failure to train subordinates under her direction.

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Additionally, based on defendants Green and Isen’s conduct, the municipality of Kern

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County is liable for suit in this action as well primarily for enforcing a code of silence, negligence,

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deliberate indifference, and failures to train its county officers based on all of the aforementioned

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facts cited above.

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Plaintiff seeks monetary damages, including punitive damages and injunctive relief.

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Plaintiff seeks to have the disciplinary charge cleared from his correctional file and restoration

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of credits lost due to the disciplinary charge.

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IV.

DEFENDANTS’ OPPOSITION TO MOTION TO AMEND

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Defendants maintain that Plaintiff’s filing of a motion to amend continues a long history

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of abusive and bad faith tactics in this Court which have resulted in the dismissal of multiple

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other cases filed by Plaintiff. Defendants argue that Plaintiff again seeks to add unrelated

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allegations, unrelated Defendants, and Defendants that have already been dismissed by the court.

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In addition, Defendants argue that Plaintiff’s motion should be denied on the basis that (1)

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Plaintiff’s request to amend was made in bad faith, (2) Plaintiff unduly delayed requesting the

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amendment, (3) amendment would cause prejudice to Defendants, (4) amendment would be

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futile, and (5) Plaintiff has already had the opportunity to amend in this action.

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Defendants make reference to five prior cases filed by Plaintiff which were dismissed for

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failure to state a claim and for bad behavior such as attempting to amend his complaint to add

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unrelated or previously dismissed defendants, engaging in harassing sexual comments to the

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female Deputy Attorney General and the Magistrate Judge, and refusing to attend his deposition.

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V.

DISCUSSION

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Plaintiff’s proposed Second Amended Complaint suffers from serious deficiencies.

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A.

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First, Plaintiff’s proposed Second Amended Complaint violates Rule 8(a) of the

Federal Rules of Civil Procedure.

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Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited

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exceptions. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002). Under federal notice

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pleading, a complaint is required to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply

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give defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”

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Swierkiewicz, 534 U.S. at 512. Detailed factual allegations are not required, but “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)). While a plaintiff’s allegations are taken as

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true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc.,

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572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a

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viable claim for relief, Plaintiff must set forth sufficient factual allegations sufficient to state a

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plausible claim for relief. Iqbal, 556 U.S. at 678-679; Moss v. U.S. Secret Service, 572 F.3d 962,

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969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

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standard. Id.

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The federal rules contemplate brevity. See Galbraith v. County of Santa Clara, 307 F.3d

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1119, 1125 (9th Cir. 2002) (noting that “nearly all of the circuits have now disapproved any

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heightened pleading standard in cases other than those governed by Rule 9(b)”); Fed. R. Civ. P.

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84; cf. Rule 9(b) (setting forth rare exceptions to simplified pleading). Rule 8 requires Plaintiff

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to set forth his claims in short and plain terms, simply, concisely and directly. See Swierkiewicz,

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534 U.S. at 514 (“Rule 8(a) is the starting point of a simplified pleading system, which was

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adopted to focus litigation on the merits of a claim.”); Fed. R. Civ. P. 8. The Court (and

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defendant) should be able to read and understand Plaintiff’s pleading within minutes. McHenry

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v. Renne, 84 F.3d 1172, 1179–80 (9th Cir. 1996).

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Plaintiff’s proposed Second Amended Complaint, Request for Judicial Notice and
exhibits are 678 pages long, which is clearly in violation of Rule 8.
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Second, Plaintiff may not reinstate claims or defendants in the proposed Second

Amended Complaint that were dismissed from the First Amended Complaint.

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On September 22, 2020, the Court dismissed all of Plaintiff’s claims and defendants

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except his excessive force claim against defendants Cantu, W. Gutierrez, and Mattingly. (ECF

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No. 27.) Plaintiff attempts to reinstate claims and defendants in the proposed Second Amended

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Complaint that were previously dismissed.

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conspiracy, violation of due process, claims challenging his guilty finding at the disciplinary

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hearing, inadequate medical care, false reports, and retaliation. He also attempts to reinstate

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defendants Lieutenant (Lt.) Brian L. Parriot, Kern County Board of Supervisors, Lisa S. Green

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(Kern County D.A.), John Doe (Secretary, CDCR), Kim Holland (Warden, CCI), L. Gordon Isen

Plaintiff attempts to reinstate his claims for

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(Deputy D.A., Kern County), J. Gutierrez (Associate Warden), C/O Richard Cuellar, Patrick

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Matzen (Associate Warden), Lt. David Crounse (Hearing Officer), Lt. T. Kephart, C/O J. Davis,

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C/O Jon Reimers, and Sgt. R. Cole. All of these claims and defendants were dismissed from the

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First Amended Complaint by the court on December 10, 2020, without leave to amend.

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C.

Third, Plaintiff’s state law claims for negligence, failure to train, assault, and

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battery are subject to dismissal because Plaintiff has not alleged compliance with California’s

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Victim Compensation and Government Claims Board. Plaintiff is required to specifically allege

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compliance in his complaint. Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 208-09 (Cal.

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2007); State v. Superior Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 (Cal. 2004); Mabe

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v. San Bernardino Cnty. Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold

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v. California Pub. Utils. Comm’n, 67 F.3d 1470, 1477 (9th Cir. 1995); ); Karim-Panahi v. Los

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Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Plaintiff has not done so. Therefore,

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it would be futile to add these claims in a Second Amended Complaint.

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Finally, Plaintiff fails to state an excessive force against defendants Parriot, Cole,

and Cuellar in the proposed Second Amended Complaint.

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In the First Amended Complaint Plaintiff alleged that on February 25, 2015, he was being

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escorted by defendants Cantu, W. Gutierrez, and Mattingly and monitored by defendants Parriot,

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Cole, and Cuellar when defendants W. Gutierrez and Mattingly “abruptly threw [Plaintiff] to the

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ground face first where W. Gutierrez, Mattingly, and Cantu, along with several other Correctional

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staff members whom I cannot identify then began to beat Plaintiff with their hands, feet, and

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batons.” (ECF No. 22 at 5.) There are no allegations in the First Amended Complaint that

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defendants Parriot, Cole, or Cuellar used any force against Plaintiff.

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In the proposed Second Amended Complaint Plaintiff alleges that defendants Cole and

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Parriot “utilized illegal physical force” against Plaintiff on February 25, 2015 “while conducting

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their duties as Peace Officers within the SHU Complex at CCI.” (ECF No. 36 at 21 ¶ 3.) This

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new allegation of physical force by defendants Cole and Parriot is too conclusory to state a claim.

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It is not sufficient to merely allege that physical force was used. To state a claim Plaintiff must

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set forth “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
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its face.’” Iqbal, 556 U.S. at 678. “[W]henever prison officials stand accused of using excessive

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physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry

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is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically to cause harm.” Id. at 7. “In determining whether the use of force

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was wanton and unnecessary, it may also be proper to evaluate the need for application of force,

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the relationship between that need and the amount of force used, the threat reasonably perceived

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by the responsible officials, and any efforts made to temper the severity of a forceful response.”

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Id. (internal quotation marks and citations omitted). “The absence of serious injury is . . . relevant

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to the Eighth Amendment inquiry, but does not end it.” Id.

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It would be futile to allow this claim to go forward as alleged because it would be subject

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to dismissal.

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VI.

CONCLUSION AND ORDER

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Based on the foregoing, the court finds it would be futile for Plaintiff to file the proposed

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Second Amended Complaint he submitted to the court. It would be futile to allow Plaintiff to

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reinstate claims and defendants that were dismissed from the First Amended Complaint by the

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court on December 10, 2020. Plaintiff’s allegations in the proposed Second Amended Complaint

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concerning these claims and defendants are nearly identical to those which the court dismissed

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from the First Amended Complaint.1

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The fact that Plaintiff has already amended his Complaint [with ample guidance from the

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court] also weighs against granting leave to amend. See Johnson v. Buckley, 356 F.3d 1067,

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1077 (9th Cir. 2004) (holding that, in considering whether to grant leave to amend, courts should

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consider whether the plaintiff has previously amended the complaint); see also City of Los

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Angeles v. San Pedro Boat Works, 635 F.3d 440, 454 (9th Cir. 2011) (“[T]he district court’s

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discretion to deny leave to amend is particularly broad where plaintiff has previously amended

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the complaint.”) (quotation omitted).

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The court notes that Plaintiff did not file any objections to the court’s recommendations
to dismiss those claims and defendants.
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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s motion for leave to amend, filed on July 16, 2021, is denied; and

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In light of this ruling, Plaintiff’s request for judicial notice is also denied.

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IT IS SO ORDERED.
Dated:

August 13, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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