Gomez v. Sanders, et al.

Filing 45

ORDER signed by Magistrate Judge Craig M. Kellison on 10/12/2016 ORDERING plaintiff's 42 third amended complaint is STRICKEN as filed without leave of court; plaintiff's 41 motion for an extension of time is DENIED; and defendants' 44 motion to strike is GRANTED to the extent consistent with this order. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GOMEZ, 12 No. 2:13-CV-0480-GEB-CMK-P Plaintiff, 13 vs. 14 SANDERS, et al., 15 16 17 ORDER Defendants. / Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the court is plaintiff’s third amended complaint (Doc. 42, 19 plaintiff’s motion for an extension of time (Doc. 41), defendants’ opposition to the motion for 20 additional time (Doc. 43), and defendants’ motion to strike (Doc. 44). 21 This action proceeds on plaintiff’s second amended complaint. The undersigned 22 issued findings and recommendations that defendants’ motion to dismiss be granted, limiting the 23 claims in this action. The findings and recommendations are pending submission to the District 24 Court and thus are not finalized. No objections to the findings and recommendation have been 25 filed. However, in response to the findings and recommendations, plaintiff filed a motion for an 26 extension of time to file a third amended complaint. Without waiting for the court to act on his 1 1 request for additional time, plaintiff filed his third amended complaint. Defendants oppose both 2 the motion for additional time and the filing of the third amended complaint. 3 The Federal Rules of Civil Procedure provide that a party may amend his or her 4 pleading once as a matter of course within 21 days of serving the pleading or, if the pleading is 5 one to which a responsive pleading is required, within 21 days after service of the responsive 6 pleading, see Fed. R. Civ. P. 15(a)(1)(A), or within 21 days after service of a motion under Rule 7 12(b), (e), or (f) of the rules, whichever time is earlier, see Fed. R. Civ. P. 15(a)(1)(B). In all 8 other situations, a party’s pleadings may only be amended upon leave of court or stipulation of all 9 the parties. See Fed. R. Civ. P. 15(a)(2). 10 The time for plaintiff to file an amended complaint without leave of court has long 11 since past. As such, prior to filing another amended complaint, plaintiff is required to seek leave 12 of court or a stipulation from the defendants. No leave of court has been sought, nor has any 13 stipulation been brought to the court’s attention. As such, plaintiff’s third amended complaint 14 has been improperly filed, and will be stricken from the docket. As plaintiff never requested 15 leave of court to file an amended complaint, his request for additional time in which to do so is 16 also improper and will be denied. 17 It is further noted that any request for leave of court to file an amended complaint 18 may be futile. Where leave of court to amend is required and sought, the court considers the 19 following factors: (1) whether there is a reasonable relationship between the original and 20 amended pleadings; (2) whether the grant of leave to amend is in the interest of judicial economy 21 and will promote the speedy resolution of the entire controversy; (3) whether there was a delay in 22 seeking leave to amend; (4) whether the grant of leave to amend would delay a trial on the merits 23 of the original claim; and (5) whether the opposing party will be prejudiced by amendment. See 24 Jackson v. Bank of Hawai’i, 902 F.2d 1385, 1387 (9th Cir. 1990). Leave to amend should be 25 denied where the proposed amendment is frivolous. See DCD Programs, Ltd. v. Leighton, 833 26 F.2d 183, 186 (9th Cir. 1987). 2 1 From the allegations in the third amended complaint, it appears the amendment 2 seeks to add additional defendants and claims that are seemingly unrelated to the claims in this 3 action and/or would not survive screening. To the extent plaintiff attempts to state a claim 4 against J. Clark Kelso as Federal Receiver, plaintiff’s allegations appear to relate to the 5 Receiver’s supervisorial position. Supervisory personnel are generally not liable under § 1983 6 for the actions of their employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) 7 (holding that there is no respondeat superior liability under § 1983). A supervisor is only liable 8 for the constitutional violations of subordinates if the supervisor participated in or directed the 9 violations. See id. The Supreme Court has rejected the notion that a supervisory defendant can 10 be liable based on knowledge and acquiescence in a subordinate’s unconstitutional conduct 11 because government officials, regardless of their title, can only be held liable under § 1983 for 12 his or her own conduct and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 129 13 S.Ct. 1937, 1949 (2009). Supervisory personnel who implement a policy so deficient that the 14 policy itself is a repudiation of constitutional rights and the moving force behind a constitutional 15 violation may, however, be liable even where such personnel do not overtly participate in the 16 offensive act. See Redman v. Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc). 17 As to plaintiff’s allegations against Galen H. Church, the claims are not related to 18 those alleged in this case. Those allegations relate to actions that have occurred at another 19 facility and involve failure to evaluate plaintiff’s medical condition not a denial of a transplant 20 for financial reasons as alleged against the defendants in this action. 21 As no request for leave to file an amended complaint has been filed, the third 22 amended complaint was filed without authorization and will be stricken. This action will 23 continue on the second amended complaint until ordered otherwise. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. 26 Plaintiff’s third amended complaint (Doc. 42) is stricken as filed without leave of court; 3 1 2. Plaintiff’s motion for an extension of time (Doc. 41) is denied; and 2 3. Defendants’ motion to strike (Doc. 44) is granted to the extent consistent 3 with this order. 4 5 6 7 DATED: October 12, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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