Smith v. Zaklos et al
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 1/18/17 ORDERING that plaintiff's motion to amend (ECF No. 27 ) is GRANTED; Plaintiff shall, within 21 days of the date of this order, file his second amended complaint as a separate docket entry; and Defendants motion to dismiss (ECF No. 25 ) is DENIED without prejudice, subject to renewal after plaintiff files the second amended complaint.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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NOEL RAY SMITH,
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No. 2:15-cv-0842 WBS DB
Plaintiff,
v.
ORDER
CHAIM ZAKLOS, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. §
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1983. On January 11, 2016, before the defendants in this case were served and before the
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magistrate judge screened the original complaint, plaintiff filed his first amended complaint.
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(ECF No. 14.) On March 9, 2016, the magistrate judge then-assigned to this case, Judge Carolyn
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Delaney, granted plaintiff’s motion to proceed in forma pauperis and directed plaintiff to submit
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service documents. (ECF No. 15.) On March 15, 2016, plaintiff submitted the service documents
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(ECF No. 18), which Judge Delaney later ordered (ECF No. 19) to be served on defendants.
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On June 1, 2016, defendants filed a motion to dismiss the first amended complaint. (ECF
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No. 25.) Plaintiff filed an opposition (ECF No. 26), as well as a motion to amend the complaint
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(ECF No. 27). Defendants oppose the motion to amend the complaint. (ECF No. 30.)
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Defendants filed a reply memorandum (ECF No. 28) in support of their motion to dismiss and
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plaintiff filed a reply memorandum (ECF No. 31) in support of the motion to amend.
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For the reasons set forth below, the undersigned grants plaintiff’s motion to amend and
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denies without prejudice, subject to renewal, defendants’ motion to dismiss.
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I.
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Motion to Amend
Plaintiff has amended once and therefore he must obtain leave of court to amend. Fed. R.
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Civ. P. 15(a). “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice
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so requires.” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the
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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
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delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951.
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Defendants argue that the second amended complaint is submitted in bad faith, prejudices
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defendants, and is futile. (ECF No. 30.) The court will address each of these arguments in turn
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below.
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There is no evidence before the court to suggest that plaintiff acted in bad faith. Most of
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what defendants cite as “dilatory and bad faith tactics” are simply efforts to shore up the
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complaint and address issues raised in defendants’ motion to dismiss. The court’s review of the
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pleadings -- the first amended complaint (ECF No. 14), defendants’ motion to dismiss (ECF No.
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25), and the proposed second amended complaint (ECF No. 27-1) -- reveals that plaintiff is
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addressing deficiencies in the first amended complaint, not acting in bad faith through the
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changing of inconvenient factual allegations from the first amended complaint.
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While plaintiff alters his requested relief and identifies a religion in the second amended
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complaint concerning his Religious Land Use and Institutionalized Persons Act of 2000
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(RLUIPA) claims, he does not cross into the realm of bad faith by altering fundamental facts
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between versions of the complaint. Defendants assert that plaintiff’s addition of new facts
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concerning alleged denials of the Kosher diet through the Form 22 process also constitutes bad
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faith. The mere addition of new facts is insufficient to establish bad faith, and, despite
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defendants’ suggestion to the contrary, plaintiff need not provide an explanation of why certain
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factual allegations were not presented in previous versions of the complaint. In essence,
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plaintiff’s amendment does exactly what a court may require if a complaint was deemed deficient
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and dismissed without prejudice. Thus, this factor favors granting plaintiff leave to amend his
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complaint.
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Prejudice is the most critical factor in determine whether leave to amend should be
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granted. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The
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burden of showing prejudice is on the party opposing an amendment to the complaint. DCD
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Programs v. Leighton, 833 F.2d 183, 187 (9th Cir. 1986). The only prejudice defendants’ allege
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is that they would be required to respond to the second amended complaint after they already
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filed a motion to dismiss the first amended complaint. As of the date of this order, defendants’
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only actions in this case have been to prosecute the motion to dismiss and to oppose the motion to
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amend. (ECF Nos. 25; 28; 30.) Thus, allowance of the amendment will not set this case back a
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tremendous amount (as of the date of this writing, there are only 33 docket entries in the case) and
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the court does not believe it is an undue burden to require defendants to address the second
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amended complaint. Thus, this factor favors granting plaintiff leave to amend his complaint.
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Finally, defendants argue that amendment will be futile. “[T]he general rule that parties
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are allowed to amend their pleadings does not extend to cases in which any amendment would be
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an exercise in futility or where the amended complaint would also be subject to dismissal.”
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Novak v. U.S., 795 F.3d 1012, 1020 (9th Cir. 2015) (citations omitted). “The showing of futility
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must be ‘strong’ to warrant a departure from the liberal application of Rule 15(a).” Dong Ah Tire
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& Rubber Co. v. Glasforms, Inc., 2009 WL 667171, at *2 (N.D. Cal. Mar. 10, 2009).
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Defendants claim that plaintiff’s amendment is futile on grounds that his RLUIPA claims
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were mooted upon his transfer to Correctional Training Facility in Soledad, California. (ECF No.
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30 at 4.) However, defendants cite to Pinola v. Virga, No. 2:11–cv–1165 KJM KJN, 2012 WL
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260116 (E.D. Cal. Jan. 26, 2012), a case in which this court dismissed a similarly-situated
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plaintiff’s complaint with leave to amend because the plaintiff claimed that he was challenging a
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CDCR policy as opposed to an institution-specific policy. Thus, in Pinola, amendment was not
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deemed futile as the plaintiff was provided with the opportunity to file an amended complaint that
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made clear that he was “challenging a CDCR policy and naming appropriate defendants, i.e.,
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CDCR officials responsible for implementing and/or enacting the policy.” Id. at *2. This is
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similar enough to the present case to allow plaintiff to proceed with his proposed amendment.
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Thus, this factor too weighs in favor of granting amendment.
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Accordingly, the undersigned grants the motion to amend.
II.
Motion to Dismiss
As the court is allowing plaintiff the opportunity to amend his complaint, defendants’
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pending motion to dismiss is moot. Accordingly, the motion is denied without prejudice, subject
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to renewal if defendants wish move for dismissal again after plaintiff’s second amended
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complaint is filed as a separate docket entry.
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III.
Conclusion
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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(1)
Plaintiff’s motion to amend (ECF No. 27) is granted;
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(2)
Plaintiff shall, within 21 days of the date of this order, file his second amended
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complaint as a separate docket entry; and
(3)
Defendants’ motion to dismiss (ECF No. 25) is denied without prejudice, subject
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to renewal after plaintiff files the second amended complaint.
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Dated: January 18, 2017
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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.CIVIL RIGHTS / smit0842.mtd.mta
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