Jones v. Toft et al

Filing 54

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/18/2012 ORDERING that plaintiff's [38 amended complaint, construed as a motion for leave to file an amended complaint, is GRANTED; plaintiff's duplicate 42 first amended complaint is STRICKEN; defendant Blum's 29 motion to dismiss is DENIED as moot; defendant Toft's 53 motion for summary judgment is DENIED as moot, without prejudice; the dispositive motion deadline is EXTENDED to within 14 days of service of this order; defendant Blum's 47 motion for summary judgment is DEEMED TIMELY filed; and defendants shall file and serve their responsive pleadings to the amended complaint within 14 days. (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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ANTHONY JONES,
Plaintiff,

ORDER

vs.

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No. CIV S-11-0192 MCE EFB P

Defendants.

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TOFT, et al.,

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/

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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. This action proceeds on the original complaint, filed January 21, 2011, on

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plaintiff’s Eighth Amendment claims against defendants Toft and Blum. Dckt. Nos. 1, 13.

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Plaintiff has filed an amended complaint, and defendant Toft and Blum each oppose amendment.

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Dckt. No. 38, 39, 40. Defendant Blum moves to dismiss the original complaint under Federal

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Rule of Civil Procedure (“Rule”) 12(b)(6), and moves for summary judgment. Dckt. Nos. 29,

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47. Defendant Toft also moves for summary judgment. Dckt. No. 53. For the reasons that

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follow, the court will allow plaintiff leave to amend, deny defendant Blum’s motion to dismiss

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and defendant Toft’s motion for summary judgment as moot, and deem defendant Blum’s

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motion for summary judgment timely filed.

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I.

Background
Plaintiff filed this action on January 21, 2011, alleging claims against numerous

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defendants. Dckt. No. 1. On March 15, 2011, the court found service appropriate for defendants

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Blum and Toft on plaintiff’s claims that they violated his Eighth Amendment rights. Dckt. No.

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13. (Plaintiff’s claims against several additional defendants were dismissed without leave to

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amend and plaintiff’s defective equal protection claims against Blum and Toft were dismissed

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following plaintiff’s election not to file an amended complaint attempting to cure the defects in

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those claims. Dckt. Nos. 13, 28.) Plaintiff alleged that defendants Blum and Toft provided

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constitutionally inadequate medical care during a surgery to remove a shotgun pellet from

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plaintiff’s face. Dckt. No. 1, § IV.

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On May 13, 2011 defendant Toft responded to the complaint by filing an answer. Dckt.

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No. 22. Thereafter, the court issued a discovery and scheduling order. That order provided that

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any motions to amend be filed no later than September 9, 2011, and that dispositive motions be

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filed no later than December 2, 2011. Dckt. No. 26 at 4.

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On June 8, 2011, defendant Blum responded to the complaint by filing a motion to

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dismiss. Dckt. No. 29. The motion argues that the complaint does not include sufficient factual

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allegations to support either an Eighth Amendment claim or a Fourteenth Amendment equal

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protection claim. Plaintiff opposed the motion, and Blum filed a reply brief. Dckt. Nos. 33, 35.

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On July 28, 2011, plaintiff filed an amended complaint, apparently based upon a

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mistaken belief that the May 13, 2011 discovery and scheduling order required him to file an

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amended complaint.1 See Dckt. No. 38 (“Per court orders, Plaintiff hereby produces this First

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Amended Complaint . . . .”); see also Dckt. No. 44 (contending he was not required to seek leave

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to file an amended complaint, because the court previously “ordered plaintiff to file an amended

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complaint by September 9, 2011”). The amended complaint omits references to dismissed

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Plaintiff filed a duplicate of his first amended complaint on August 24, 2011. Dckt. No.
42. The court will order that the duplicate filing be stricken.
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claims and defendants, includes additional factual allegations against defendants Blum and Toft,

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and includes exhibits that were not submitted with the original complaint. See id.

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On August 11, 2011, defendant Blum objected to plaintiff’s first amended complaint

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because plaintiff did not first seek leave to file an amended complaint. Dckt. No. 39. He argued

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that if the court considers the first amended complaint, it should still consider his Rule 12(b)(6)

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motion to dismiss the original complaint because the first amended complaint is substantially

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similar. Alternatively, he requested that the court allow him leave to file a Rule 12(b)(6) motion

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in response to the first amended complaint. On August 12, 2011, defendant Toft joined in

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Blum’s objection to plaintiff’s first amended complaint. Dckt. No. 40.

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On September 6, 2011, plaintiff responded to defendants’ objections, arguing his first

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amended complaint “should be accepted based on the new facts which Plaintiff has revealed to

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this Court.” Dckt. No. 44.

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With these filings pending, the December 2, 2011 deadline for filing dispositive motions

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passed. However, on January 13, 2012, defendant Blum responded to the proposed first

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amended complaint with a motion for summary judgment. Dckt. No. 47. And on January 17,

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2012, defendant Toft responded to the original complaint with a motion for summary judgment.

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Dckt. No. 53.

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Neither party has filed a responsive pleading to the proposed first amended complaint.

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See Fed. R. Civ. P. 12(a)(1).

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II.

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

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Rule 15(a)(1) for amendment as a matter of course, he may not amend the complaint without

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defendants’ consent or the court’s leave. Fed. R. Civ. P. 15(a). Although plaintiff did not

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expressly seek leave to amend, by filing an amended complaint, and given his response to

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defendants’ objections, it appears that he desires such leave. As noted, defendants have not

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consented to plaintiff’s filing of an amended complaint. However, “[t]he court should freely
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give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

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The policy of freely granting leave to amend should be applied with “extreme liberality.”

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DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). When determining whether

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to grant leave to amend under Rule 15(a), a court should consider the following factors: (1)

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undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.

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Foman v. Davis, 371 U.S. 178, 182 (1962). According to the Ninth Circuit, “the crucial factor is

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the resulting prejudice to the opposing party,” and the burden of showing that prejudice is on the

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party opposing amendment. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973);

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); DCD Programs,

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833 F.2d at 187. Granting or denying leave to amend rests in the sound discretion of the trial

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court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d

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339, 343 (9th Cir. 1996).

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Defendants argue that plaintiff should not be given leave to amend for the sole reason

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that he did not seek leave of court. Turning to the factors relevant in considering whether to

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grant leave to amend, the court finds that they favor granting leave. Here, there is no indication

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that plaintiff, who is appearing pro se, unduly delayed in requesting leave to amend or that his

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filing was made in bad faith. Further, the amendments made by plaintiff, which will be screened

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by the court pursuant to 28 U.S.C. § 1915A, are not futile, as they omit unnecessary references to

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defendants and claims who have already been dismissed from this action. Moreover, defendants

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do not claim to be prejudiced by the amendment, and it appears that defendant Blum no longer

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opposes amendment, as he has responded to the proposed first amended complaint with a motion

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for summary judgment. Accordingly, plaintiff’s amended complaint, construed as a motion for

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leave to file the amended complaint, will be granted.

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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).

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Liberally construed, and for the limited purposes of § 1915A screening, the amended

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complaint states a potentially cognizable Eighth Amendment claim against defendants Blum and

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Toft for deliberate indifference to plaintiff’s serious medical needs.

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As this action now proceeds on the July 28, 2011 first amended complaint, the court will

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vacate the deadline for filing dispositive motions as established by the May 24, 2011 discovery

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and scheduling order. The court will also deny defendant Blum’s motion to dismiss and

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defendant Toft’s motion for summary judgment as moot, because the original complaint is now

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superceded by the first amended complaint. Further, the court will deem defendant Blum’s

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motion for summary judgment timely filed.

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The parties are hereby reminded that in cases in which one party is incarcerated and

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proceeding without counsel, motions ordinarily are submitted on the record without oral

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argument. Local Rule 230(l). “Opposition, if any, to the granting of the motion shall be served

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and filed with the Clerk by the responding party not more than eighteen (18) days, plus three (3)

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days for mailing or electronic service, after the date of service of the motion.” Id. A responding

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party’s failure “to file written opposition or to file a statement of no opposition may be deemed a

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waiver of any opposition to the granting of the motion and may result in the imposition of

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sanctions.” Id.

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III.

Order

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For the foregoing reasons, it is hereby ORDERED that:

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1. Plaintiff’s July 28, 2011 amended complaint, construed as motion for leave to file an

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amended complaint (Docket No. 38), is granted;

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2. Plaintiff’s duplicate first amended complaint (Docket. No. 42) is stricken;
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3. Defendant Blum’s June 8, 2011 motion to dismiss (Docket No. 29) is denied as moot;

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4. Defendant Toft’s January 17, 2012 motion for summary judgment is denied as moot,

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without prejudice to the filing of a new motion or a notice of renewal of the January 17, 2012

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motion within the timeframe set forth below;

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5. The dispositive motions deadline, as established by the May 24, 2011 discovery and

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scheduling order is vacated, and the time for filing dispositive motions is extended to within 14

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days of service of this order;

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6. Defendant Blum’s January 13, 2012 motion for summary judgment (Docket No. 47) is
deemed timely filed; and
7. Defendants shall file and serve their responsive pleadings to the amended complaint

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within 14 days of service of this order.

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DATED: January 18, 2012.

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