Garcia v. California Department of Correction & Rehabilitation, et al

Filing 110

ORDER signed by Magistrate Judge Allison Claire on 10/10/2017 DENYING plaintiff's 109 motion to file a Third Amended Complaint and to reopen discovery. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANNY R. GARCIA, 12 13 14 No. 2:13-cv-1952 JAM AC P Plaintiff, v. ORDER C/O HEATH, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner at Mule Creek State Prison (MCSP), proceeds pro se and in 18 forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. By order filed 19 December 27, 2016, all defendants with the exception of Mendoza were dismissed due to 20 plaintiff’s failure to exhaust his administrative remedies. See ECF Nos. 78, 68. This action 21 proceeds on the First Amended Complaint, ECF No. 17, against sole remaining defendant 22 Mendoza on the claim that Mendoza retaliated against plaintiff in violation of the First 23 Amendment. 24 By order filed July 25, 2017, the court set the following extended deadlines: September 25 29, 2017 for completing discovery, and December 15, 2017 for filing dispositive motions. See 26 ECF No. 106. 27 Currently pending is plaintiff’s “Motion for Leave to Amend Complaint and for 28 Admissions and Request for Summons for Additional Defendants,” by which plaintiff seeks to 1 1 add ten defendants to this action. See ECF No. 109 (235 pages with exhibits). Five of the ten 2 proposed defendants – Bradley, Health, Perez, Torres, Vallery – were dismissed from this action 3 pursuant to defendants’ failure-to-exhaust motion. See ECF Nos. 78, 68. The court rejected 4 plaintiff’s prior request to include the remaining five proposed defendants – Reaves, Artis, Knipp, 5 Lazano (or Lozano), and J.H. Colley (previously identified as “J.H.”) – when it denied plaintiff’s 6 prior motion to file a proposed Second Amended Complaint. See ECF No. 39 at 4-5. 7 In the instant motion, plaintiff contends that inclusion of all proposed defendants is 8 necessary to prove their alleged conspiracy (“campaign of harassment”) to chill plaintiff’s First 9 Amendment rights. Plaintiff seeks to demonstrate that the court’s decision granting defendants’ 10 failure-to-exhaust motion was in error, and asserts that he has new evidence obtained pursuant to 11 discovery demonstrating that his efforts to exhaust, at least as to two defendants, were improperly 12 thwarted. ECF No. 109 at 5. 13 A court should freely grant leave to amend a pleading when justice so requires. Fed. R. 14 Civ. P. 15(a)(2). “Leave to amend should be granted unless the pleading ‘could not possibly be 15 cured by the allegation of other facts,’ and should be granted more liberally to pro se plaintiffs.” 16 Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citing Lopez v. Smith, 203 F.3d 1130, 17 1131 (9th Cir. 2000) (en banc)), cert. denied, 541 U.S. 1063 (2004). “Liberality in granting a 18 plaintiff leave to amend is subject to the qualification that the amendment not cause undue 19 prejudice to the defendant, is not sought in bad faith, and is not futile. Additionally, the district 20 court may consider the factor of undue delay. Undue delay by itself, however, is insufficient to 21 justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999) 22 (citations omitted). 23 Previously, in assessing the merits of defendants’ failure-to-exhaust motion, the 24 undersigned carefully analyzed all of the parties’ evidence, including each of plaintiff’s relevant 25 administrative grievances and plaintiff’s allegations that his efforts to exhaust those grievances 26 had been unduly thwarted. See ECF No. 68. Plaintiff does not now explain which of his exhibits 27 were previously unavailable or how they should alter the court’s prior analyses. See Exhibit List, 28 ECF No. 109 at 19. It is not the responsibility of the court “to comb through the record to find 2 1 some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified School 2 District, 237 F.3d 1026, 1029 (9th Cir. 2001) (citation and internal quotation marks omitted). 3 Because the court has already considered and rejected the inclusion of each proposed defendant in 4 this case, it appears that amendment would be futile; plaintiff’s motion does not demonstrate 5 otherwise. 6 Equally important, amendment of the complaint at this juncture would be unduly 7 prejudicial to defendants. Discovery has closed; dispositive motions are due by December 15, 8 2017. It would be unfair to reopen discovery at this time, particularly for ten new defendants. 9 This case has been pending for more than four years and it is time to reach the merits of plaintiff’s 10 claims against defendant Mendoza. Plaintiff has failed to demonstrate that his proposed 11 amendments are required by the interests of justice. See Fed. R. Civ. P. 15(a)(2). 12 For these reasons, IT IS HEREBY ORDERED that plaintiff’s motion for leave to file a 13 Third Amended Complaint and to reopen discovery, ECF No. 109, is DENIED. 14 DATED: October 10, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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