Hardy v. Davis et al

Filing 45

ORDER signed by Judge John A. Mendez on 6/9/2015 ADOPTING 37 Findings and Recommendations; GRANTING 26 Motion to Dismiss with leave to amend as to all of Plaintiff's claims against Defendant Davis; DENYING 26 Motion to Dismiss as to Plaint iff's Fourth Amendment claim against Defendants Morris and Zahniser; GRANTING the plaintiff twenty-one days to file an amended complaint as to the allegations against Defendant Davis; ORDERING Defendants Morris and Zahniser to file an answer within twenty-one days of the filing of the plaintiff's amended complaint, or the expiration of the twenty-one days allotted to file said amended complaint, whichever is sooner; DENYING 31 Motion to Amend the Complaint. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRISTIN HARDY,

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No. 2:13-cv-0726 JAM DAD P

Plaintiff,

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v.

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C. DAVIS, et al.,

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ORDER

Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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

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On February 11, 2015, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations and Defendants responded.

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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 finds the findings and recommendations to be supported by the record and by proper

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analysis, but the Court does not adopt the findings and recommendations to the extent they deny

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Plaintiff leave to amend his claims against Defendant Davis. A court should freely grant leave to
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amend. Fed. R. Civ. Pro. 15(a)(2). A court “is generally required to grant the plaintiff leave to

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amend, even if no request to amend the pleading was made, unless amendment would be futile.”

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir.

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1990). Amendment is not futile if the plaintiff could “cure the defect requiring dismissal ‘without

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contradicting any of the allegations of [the] original complaint.’” Plascencia v. Lending 1st

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Mortgage, 583 F. Supp. 2d 1090, 1095 (N.D. Cal. 2008) (quoting Reddy v. Litton Indus., Inc.,

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912 F.2d 291, 296 (9th Cir. 1990)) (alteration in original).

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Here, the Court agrees with the magistrate judge that Plaintiff has not pled a causal link
between Defendant Davis’s actions and the strip search. See F&R at 6, 8. But nothing in the

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complaint contradicts such a link, and Plaintiff has had no previous opportunity to amend. The

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Court therefore grants the motion to dismiss as to Defendant Davis, but allows Plaintiff leave to

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amend those allegations.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 11, 2015 are adopted;

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2. Defendants’ March 28, 2014 motion to dismiss (ECF No. 26) is granted with leave to

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amend as to all of Plaintiff’s claims against Defendant Davis, and denied as to Plaintiff’s Fourth

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Amendment claim against Defendants Morris and Zahniser;

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3. If Plaintiff chooses to file an amended complaint as to the allegations against Defendant
Davis, he must do so within twenty-one days from the date of this order;
4. Defendants Morris and Zahniser are directed to file an answer within twenty-one days

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from the date of the filing of Plaintiff’s amended complaint, or the expiration of the twenty-one

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days allotted to file such amended complaint mentioned above in paragraph 3—whichever is

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sooner; and

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5. Plaintiff’s June 2, 2014 motion to amend his complaint to add new claims or theories

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against Defendant Davis (ECF No. 31) is denied.

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DATED: June 9, 2015

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/s/ John A. Mendez_________________________

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UNITED STATES DISTRICT COURT JUDGE
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