Ward v. Ives et al

Filing 36

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/20/13 ORDERING that plaintiffs request to dismiss defendant Gulani from this action is GRANTED; Plaintiffs motion for leave to file a third amended complaint 31 is denied; and defendants Binford, Fieber, and the United States may file their responsive pleading at the same time that a responsive pleading from defendant Salinas becomes due.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN C. WARD,

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Plaintiff,

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No. 2:11-cv-1657-GEB-EFB P

v.

ORDER

RICHARD IVES, et al.,

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Defendants.

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Plaintiff is a federal prisoner proceeding without counsel in this civil rights action. On

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January 14, 2013, the court screened plaintiff’s September 12, 2012 second amended complaint,

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and determined that service was appropriate for defendants Salinas, Binford, Fieber, Gulani, and

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the United States. ECF No. 20. Defendants Binford, Fieber, and the United States have been

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served; defendants Salinas and Gulani have not. ECF Nos. 25, 26, 30. On May 14, 2013, the

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court directed plaintiff to submit new information about where defendants Salinas and Gulani

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may be served with process. ECF No. 29.
In response to that order, plaintiff submitted new information for service on Salinas and

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requested dismissal of defendant Gulani. ECF Nos. 30, 31. Plaintiff’s request to dismiss Gulani

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from this action, ECF No. 31, is granted. By separate order, the could will direct the United

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States Marshal to serve defendant Salinas based upon the new information provided by plaintiff.

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Plaintiff also requested leave to further amend his complaint to add “G. Graves” as a

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defendant, based upon allegations that Graves violated “BOP rules, regulation and policies . . .

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wrongfully issue[d] keys to heavy equipment forklift, a motor vehicle truck and compactor/bailer

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to an inmate, without authorization and no staff supervision to wit multiple accidents occur[r]ed

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specifically one with the plaintiff.” ECF No. 31, ¶ 72.

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Rule 15(a)(1) provides that “[a] party may amend its pleading once as a matter of course

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within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is

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required, 21 days after service of a responsive pleading or 21 days after service of a motion under

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Rule 12(b), (e), or (f), whichever is earlier.” Here, the court directed service of the second

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amended complaint through the United States Marshal on February 26, 2013, and service was

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executed as to at least two of the defendants on April 25, 2013. ECF Nos. 22, 25. Plaintiff

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moved to amend his complaint more than 21 days thereafter. See ECF No. 31 (May 31, 2013

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Mot. to Amend). Therefore, plaintiff may not amend without either a stipulation or leave of the

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court.

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Rule 15(a)(2) provides that “[i]n all other cases, a party may amend its pleading only with

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the opposing party’s written consent or the court’s leave. The court should freely give leave

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

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

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(9th Cir. 1987). When determining whether to grant leave to amend under Rule 15(a), a court

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

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and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Granting or

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denying leave to amend rests in the sound discretion of the trial court, and will be reversed only

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for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).

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Here, the claim plaintiff wants to add is so lacking in detail that it cannot be determined

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what specific cause of action plaintiff intends to assert. There, the request to amend the

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complaint must be denied as futile because the proposed amendment simply fails to state a claim

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upon which relief may be granted. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires

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a complaint to include a short and plain statement of the claim showing that the pleader is entitled
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to relief, in order to give the defendant fair notice of what the claim is and the grounds upon

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which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v.

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Gibson, 355 U.S. 41 (1957)). In plaintiff’s proposed amended complaint, he does not identify

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which of the BOP “rules, regulations, and policies” Graves allegedly violated. Moreover, it is

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doubtful that any private right of action would exist based on Graves’ purported breach of a BOP

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regulation. See Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831, 836

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(9th Cir. 2004) (“[I]t is the relevant laws passed by Congress, and not rules or regulations passed

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by an administrative agency, that determine whether an implied cause of action exists.”);

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Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“Language in a regulation may invoke a

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private right of action that Congress through statutory text created, but it may not create a right

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that Congress has not.”). Thus, plaintiff’s motion to amend his complaint in order to state a claim

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against Graves for violating an unspecified BOP rule, regulation, or policy, is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to dismiss defendant Gulani from this action is granted

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2. Plaintiff’s motion for leave to file a third amended complaint (ECF No. 31) is denied;

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and

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3. Defendants Binford, Fieber, and the United States may file their responsive pleading at

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the same time that a responsive pleading from defendant Salinas becomes due.

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Dated: August 20, 2013.

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