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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY R. GARCIA,

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No. 2:13-cv-1952 JAM AC P

Plaintiff,
v.

ORDER

C/O HEATH, et al.,

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Defendants.

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Plaintiff, a state prisoner at Mule Creek State Prison (MCSP), proceeds pro se and in

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forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. By order filed

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December 27, 2016, all defendants with the exception of Mendoza were dismissed due to

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plaintiff’s failure to exhaust his administrative remedies. See ECF Nos. 78, 68. This action

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proceeds on the First Amended Complaint, ECF No. 17, against sole remaining defendant

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Mendoza on the claim that Mendoza retaliated against plaintiff in violation of the First

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Amendment.

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By order filed July 25, 2017, the court set the following extended deadlines: September

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29, 2017 for completing discovery, and December 15, 2017 for filing dispositive motions. See

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ECF No. 106.

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Currently pending is plaintiff’s “Motion for Leave to Amend Complaint and for

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Admissions and Request for Summons for Additional Defendants,” by which plaintiff seeks to
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add ten defendants to this action. See ECF No. 109 (235 pages with exhibits). Five of the ten

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proposed defendants – Bradley, Health, Perez, Torres, Vallery – were dismissed from this action

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pursuant to defendants’ failure-to-exhaust motion. See ECF Nos. 78, 68. The court rejected

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plaintiff’s prior request to include the remaining five proposed defendants – Reaves, Artis, Knipp,

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Lazano (or Lozano), and J.H. Colley (previously identified as “J.H.”) – when it denied plaintiff’s

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prior motion to file a proposed Second Amended Complaint. See ECF No. 39 at 4-5.

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In the instant motion, plaintiff contends that inclusion of all proposed defendants is

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necessary to prove their alleged conspiracy (“campaign of harassment”) to chill plaintiff’s First

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Amendment rights. Plaintiff seeks to demonstrate that the court’s decision granting defendants’

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failure-to-exhaust motion was in error, and asserts that he has new evidence obtained pursuant to

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discovery demonstrating that his efforts to exhaust, at least as to two defendants, were improperly

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thwarted. ECF No. 109 at 5.

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A court should freely grant leave to amend a pleading when justice so requires. Fed. R.

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Civ. P. 15(a)(2). “Leave to amend should be granted unless the pleading ‘could not possibly be

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cured by the allegation of other facts,’ and should be granted more liberally to pro se plaintiffs.”

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Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citing Lopez v. Smith, 203 F.3d 1130,

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1131 (9th Cir. 2000) (en banc)), cert. denied, 541 U.S. 1063 (2004). “Liberality in granting a

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plaintiff leave to amend is subject to the qualification that the amendment not cause undue

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prejudice to the defendant, is not sought in bad faith, and is not futile. Additionally, the district

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court may consider the factor of undue delay. Undue delay by itself, however, is insufficient to

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justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)

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(citations omitted).

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Previously, in assessing the merits of defendants’ failure-to-exhaust motion, the

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undersigned carefully analyzed all of the parties’ evidence, including each of plaintiff’s relevant

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administrative grievances and plaintiff’s allegations that his efforts to exhaust those grievances

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had been unduly thwarted. See ECF No. 68. Plaintiff does not now explain which of his exhibits

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were previously unavailable or how they should alter the court’s prior analyses. See Exhibit List,

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ECF No. 109 at 19. It is not the responsibility of the court “to comb through the record to find
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some reason to deny a motion for summary judgment.” Carmen v. San Francisco Unified School

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District, 237 F.3d 1026, 1029 (9th Cir. 2001) (citation and internal quotation marks omitted).

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Because the court has already considered and rejected the inclusion of each proposed defendant in

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this case, it appears that amendment would be futile; plaintiff’s motion does not demonstrate

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otherwise.

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Equally important, amendment of the complaint at this juncture would be unduly

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prejudicial to defendants. Discovery has closed; dispositive motions are due by December 15,

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2017. It would be unfair to reopen discovery at this time, particularly for ten new defendants.

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This case has been pending for more than four years and it is time to reach the merits of plaintiff’s

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claims against defendant Mendoza. Plaintiff has failed to demonstrate that his proposed

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amendments are required by the interests of justice. See Fed. R. Civ. P. 15(a)(2).

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For these reasons, IT IS HEREBY ORDERED that plaintiff’s motion for leave to file a

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Third Amended Complaint and to reopen discovery, ECF No. 109, is DENIED.

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DATED: October 10, 2017

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