Barker v. Yassine

Filing 68

ORDER signed by Judge Lawrence K. Karlton on 8/31/2012 ORDEIRNG that Plaintiff MAY file for leave to amend the complaint no later than twenty-eight (28) days from the issuance of this order. The matter is REFERRED back to the magistrate judge for further proceedings. (Zignago, 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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WILLIAM BARKER,
Plaintiff,

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No. CIV S-11-0246 LKK GGH P

Defendant.

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ORDER

vs.
R. YASSINE,

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Plaintiff, a state prisoner proceeding with retained counsel, has filed this civil

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rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On January 6, 2012, the magistrate judge filed and order and findings and

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recommendations. ECF No. 53. In that filing, the magistrate judge granted plaintiff’s motion to

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substitute Scottlyn Hubbard as the attorney of record for plaintiff, and recommended that this

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court dismiss plaintiff’s state law and ADA claims. The magistrate judge also denied plaintiff’s

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request to file an amended complaint and amended answer to the motion to dismiss. The

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magistrate judge recommended that the case proceed solely on plaintiff’s Eight Amendment

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claim for excessive force.

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Plaintiff subsequently filed a motion for reconsideration directed to the magistrate judge.
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The magistrate judge held a hearing on the matter and ultimately determined it appropriate to

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affirm his initial findings and recommendations. Order on Reconsideration, ECF No. 64. Thus,

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this order addresses whether the court adopts the Findings and Recommendations issued by the

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magistrate judge on January 6, 2012.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court declines to adopt the findings and recommendations of the magistrate judge.

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Factual Background

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Plaintiff is a disabled prisoner who uses a wheelchair to move about the prison when he

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is outside of his cell. Plaintiff has injuries to his hip, spine, and shoulder. This case arises from

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an incident alleged to have occurred on October 25, 2009. Plaintiff alleges that on that date, he

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was in his wheelchair heading to the medical unit of the prison for routine treatment when he got

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into an argument with defendant Yassine, a corrections officer. Plaintiff alleges that defendant

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stated that he was going to search plaintiff, and told plaintiff to lean forward in his wheelchair.

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Plaintiff complied, and defendant pushed plaintiff forward further, until there was a loud pop and

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plaintiff cried out in pain. Plaintiff was later treated for the injury.

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Plaintiff filed his original complaint in pro se on January 26, 2011, alleging that

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defendant’s conduct violated the Eight Amendment, the Americans with Disabilities Act, and

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state tort law. Defendants have answered the complaint and have filed a motion to dismiss the

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original complaint. A scheduling order was issued and discovery has concluded. After several

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unsuccessful motions to have counsel appointed to him, plaintiff obtained his own attorney,

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Scottlyn Hubbard, who requested approval of substitution on December 8, 2011. The request for

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approval of substitution asserted that “the opposition and proposed amended complaint we have

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prepared on behalf of Mr. Barker will cure the deficiencies alleged by the defendant and, as

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such, request that the Court allow these documents to be filed. Accompanying the request for

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substitution, counsel for plaintiff attached a proposed amended opposition to the motion to
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dismiss and a proposed amended complaint. Plaintiff did not file or notice a formal motion for

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leave to amend the complaint. On January 6, 2012, the magistrate judge issued an order and

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findings and recommendations, in which he approved the substitution of counsel, and

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recommended that the motion to dismiss be granted in its entirety. The magistrate judge

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addressed some of the issues raised in the amended filings, but noted that no leave to amend the

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complaint or opposition had been granted.

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This court finds that it is in the interest of justice to permit plaintiff’ to properly move for

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leave to file and amended complaint. Recognizing that the magistrate judge was not required to

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consider the amended complaint filed without leave, the court concludes that it is proper to allow

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plaintiff’s newly obtained counsel an opportunity to now seek leave to amend. Plaintiff is

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cautioned to comply with the Eastern District Local Rules and the Federal Rules of Civil

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Procedure in all future filings.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff MAY file for leave to amend the complaint no later than twenty-eight

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(28) days from the issuance of this order.

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2. The matter is referred back to the magistrate judge for further proceedings.

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DATED: August 31, 2012.

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