Ortiz v. Reynolds et al

Filing 23

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/23/11 ordering defendant's 03/14/11 motion to dismiss 16 is denied without prejudice. Plaintiff's 05/02/11 motion for leave to file an amended complaint 19 is granted. Defendants' 06/06/11 motion to strike the amended complaint 22 is denied. Defendant shall respond to the amended complaint within 14 days of service of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE B. ORTIZ,
Plaintiff,

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vs.

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No. CIV S-10-1380 EFB P

J. REYNOLDS, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Plaintiff seeks leave to amend his complaint. Dckt. No. 19. Defendant seeks

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dismissal of the complaint, opposes amendment, and moves the court to strike the amended

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complaint filed by plaintiff. Dckt. Nos. 16, 20, 22. For the reasons that follow, the court will

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deny defendant’s motion to strike and grant plaintiff leave to amend. Dckt. No. 21. The court

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will further accept plaintiff’s amended complaint. The court will deny defendant’s motion to

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dismiss without prejudice to its renewal directed to the now operative complaint or to defendant

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filing another motion to dismiss on other grounds.

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I.

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Background
Plaintiff filed this action on June 4, 2010, alleging claims against numerous defendants.

Dckt. No. 1. On October 1, 2010, the court found service appropriate for defendant Miranda.
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Dckt. No. 5. (The remaining defendants were dismissed following plaintiff’s election not to file

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an amended complaint attempting to state cognizable claims against them. Dckt. No. 12.)

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Plaintiff alleged that defendant Miranda unconstitutionally interfered with his receipt of

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necessary pain medication. Dckt. No. 1 at 3-4.

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On March 14, 2011, defendant Miranda responded to the complaint by filing a motion to

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dismiss. Dckt. No. 16. The motion argues that, because plaintiff’s complaint seeks only

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injunctive relief against defendant Miranda, his claims are encompassed within an ongoing class

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action, Plata v. Schwarzenegger, No. C-01-1351 THE (N.D. Cal. 2001). The motion further

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argues that defendant Miranda lacks the power to issue the requested injunctive relief.

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Rather than filing an opposition to the motion to dismiss, plaintiff filed a motion for leave

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to file an amended complaint on May 2, 2011. Dckt. No. 19. He did not file the amended

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complaint itself, however, until May 16, 2011. Dckt. No. 21.

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II.

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Analysis
Because plaintiff filed his amended complaint beyond the 21-day window provided by

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Federal Rule of Civil Procedure 15(a)(1) for amendment as a matter of course, he may not

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amend the complaint without defendant Miranda’s consent or the court’s leave. Fed. R. Civ. P.

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15(a). Defendant Miranda has not consented. However, “[t]he court should freely give leave

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when justice so requires.” Id. R. 15(a)(2). The policy of freely granting leave to amend should

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be applied with “extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th

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Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court should

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consider the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4)

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prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). According to the

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Ninth Circuit, “the crucial factor is the resulting prejudice to the opposing party,” and the burden

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of showing that prejudice is on the party opposing amendment. Howey v. United States, 481

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F.2d 1187, 1190 (9th Cir. 1973); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052

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(9th Cir. 2003); DCD Programs, 833 F.2d at 187. Granting or denying leave to amend rests in
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the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson

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v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).

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Defendant argues that plaintiff should not be given leave to amend because he alleges

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“new theories” – i.e., he now seeks money damages in addition to injunctive relief. Defendant

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also argues that plaintiff alleges new facts that have arisen since the first complaint was filed and

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which have thus not been exhausted. However, having reviewed the amended complaint, the

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court finds that plaintiff’s claim for damages does not appreciably change the scope of this case.

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Plaintiff’s legal claims have not changed – he continues to allege that defendant Miranda acted

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in various ways to deny plaintiff access to necessary pain medication between 2008 and March

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18, 2010. Compare Dckt. No. 1 at 3-4 with Dckt. No. 21 at 3-9. While plaintiff alleges that

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defendant’s misconduct continues “to present,” Dckt. No. 21 at 8-9, it does not appear that

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plaintiff challenges any conduct that occurred after this case was filed, as all instances of alleged

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misconduct specified in the amended complaint occurred in March 2010 or earlier. As it does

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not appear from the face of the amended complaint that plaintiff’s claims are unexhausted and

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defendant bears the burden of establishing failure to exhaust, the court will not deny leave to

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amend simply based on defendant’s speculation that the complaint may encompass an

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unexhausted claim. See Jones v. Bock, 549 U.S. 199, 215-16 (2007). Should it become clear at a

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later point in this action that plaintiff raises claims that have not been properly exhausted,

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defendant may seek dismissal on that ground at that time.

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Turning to the factors relevant in considering whether to grant leave to amend, the court

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finds no indication that plaintiff has acted in bad faith in seeking to amend. Rather, it appears

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that plaintiff, having been made aware of a defect in the original complaint (failure to seek

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money damages), now seeks to remedy that defect. He has done so without unreasonable delay.

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Further, the amendment may save his case from outright dismissal and is thus not futile. Finally,

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defendant has not articulated any way in which he will be prejudiced by the amendment.

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Accordingly, the court will grant plaintiff leave to amend, accept the amended complaint filed on

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May 16, 2011, and deny defendant’s motion to strike the same.

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Pursuant to 28 U.S.C. § 1915A, the court shall review “a complaint in a civil action in

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which a prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity.” 28 U.S.C. § 1915A(a). “On review, the court shall identify cognizable

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claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous,

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malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief

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from a defendant who is immune from such relief.” Id. § 1915A(b). The court finds that, for the

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limited purposes of § 1915A screening, the amended complaint states cognizable claims for

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relief against defendant Miranda.

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Defendant Miranda’s pending motion to dismiss this action is premised entirely on the

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fact that the initial complaint sought only injunctive relief and contained no claim for money

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damages. As that is no longer the case, the court will deny the motion to dismiss. However, the

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denial of the motion is without prejudice to defendant filing a renewed motion to dismiss the

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claims for injunctive relief on the same grounds presented in the instant motion or seeking to

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dismiss plaintiff’s claims on other grounds.

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III.

Order

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For the foregoing reasons, it is hereby ORDERED that:

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1. Defendant’s March 14, 2011 motion to dismiss, Dckt. No. 16, is denied without

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prejudice;

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2. Plaintiff’s May 2, 2011 motion for leave to file an amended complaint, Dckt. No. 19,
is granted;

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3. Defendant’s June 6, 2011 motion to strike the amended complaint, Dckt. No. 22, is

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denied; and

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4. Defendant shall respond to the amended complaint within 14 days of service of this

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order.

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DATED: August 23, 2011.

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