Ramirez v. Swingle et al

Filing 44

ORDER signed by Magistrate Judge Kendall J. Newman on 4/10/2012 ORDERING that plaintiff's 39 motion to amend is DENIED; defendants' 40 motion to dismiss is DENIED; plaintiff's 41 motion for an extension of time is GRANTED, plaintiff's opposition to defendants' summary judgment motion is due within 45 days; no further extensions of time to file an opposition will be granted. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDREW RAMIREZ,

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Plaintiff,

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vs.
D. SWINGLE, et al.,
Defendants.

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No. 2: 11-cv-0045 KJN P

ORDER
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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action

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pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff’s March 1, 2012 motion to

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amend. Defendants did not file an opposition to this motion. Nevertheless, for the following

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reasons, this motion is denied.

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After a party has amended a complaint once, the party may only amend further

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after gaining consent from the adverse party or leave from the court. Eminence Capital, L.L. C.

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v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). The court should freely give leave to

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amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). Whether to grant a motion to amend

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depends on the following factors: (1) undue delay, (2) bad faith, (3) prejudice to the opposing

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party, (4) futility of amendment, and (5) whether plaintiff has previously amended his complaint.

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Western Shoshone Nat. Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991).
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This action is proceeding on the original complaint filed January 5, 2011, as to

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defendants Medina and Swingle. Plaintiff alleges that he received inadequate medical care for

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diabetes, physical therapy and pain.

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On June 9, 2011, the court issued a scheduling order setting the pretrial motion

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deadline as December 23, 2011. On December 21, 2011, defendants filed a motion for an

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extension of time to file a summary judgment motion. On January 3, 2011, the undersigned

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granted defendants’ motion and ordered their summary judgment motion due on or before

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February 6, 2012. On February 6, 2012, defendants filed a summary judgment motion.

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In the proposed amended complaint filed March 1, 2012, plaintiff seeks to add

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new defendants, although plaintiff does not clearly identify the proposed new defendants.

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Plaintiff also seeks to include new claims regarding denial of breathing treatments.

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As discussed above, the original pretrial motion deadline was December 23, 2011.

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Defendants’ summary judgment motion is pending. Under these circumstances, granting

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plaintiff’s motion to amend would significantly delay resolution of this action as it would require

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service as to some or all of the proposed new defendants as well as reopening discovery and

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setting a new pretrial motion deadline. While plaintiff’s motion to amend is not made in bad

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faith, both defendants and the court would be prejudiced by the delay in resolution of this action

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were plaintiff’s motion granted. Although the proposed amendments are not necessarily futile

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and plaintiff has not previously amended his complaint, the significant prejudice to both the court

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and defendants in granting the motion outweighs any factors in favor of granting the motion. For

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these reasons, plaintiff’s motion to amend is denied.

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Plaintiff has not opposed defendants’ summary judgment motion. However, on

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March 19, 2012, plaintiff filed a motion for a forty-five day extension of time to file his

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opposition. Plaintiff alleges that he could not prepare a timely opposition because High Desert

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State Prison has been on lockdown. Good cause appearing, plaintiff’s motion for extension of

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time is granted.
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On March 8, 2012, defendants filed a motion to dismiss based on plaintiff’s

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failure to oppose their summary judgment motion. Because the undersigned has granted

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plaintiff’s motion for extension of time to file his opposition to defendants’ summary judgment

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motion, defendants’ motion to dismiss is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to amend (Dkt. No. 39) is denied;

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2. Defendants’ motion to dismiss (Dkt. No. 40) is denied;

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3. Plaintiff’s motion for an extension of time (Dkt. No. 41) is granted; plaintiff’s

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opposition to defendants’ summary judgment motion is due within forty-five days of the date of

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this order; no further extensions of time to file an opposition will be granted.

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DATED: April 10, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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ram45.ame

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