Juarez v. Butts et al

Filing 72

ORDER signed by Magistrate Judge Deborah Barnes on 6/12/2018 GRANTING defendant's 68 motion to strike; plaintiff's 66 Third Amended Complaint is STRICKEN; within 30 days, plaintiff may file a motion to amend his complaint and file a f ourth amended complaint in accordance with this order; if plaintiff does not file a new motion to amend his complaint, this case will proceed on his claims against defendant Hlaing in his second amended complaint; and the Clerk shall provide plaintiff with the form for filing a civil rights complaint. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE JUAREZ,

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No. 2:15-cv-1996 JAM DB P
Plaintiff,

v.

ORDER

M. HLAING,
Defendant.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under

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42 U.S.C. § 1983. Plaintiff alleges defendant was deliberately indifferent to his serious medical

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needs by denying him adequate pain medications. Before the court is defendant’s motion to

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strike plaintiff’s third amended complaint. For the reasons set forth below, defendant’s motion

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will be granted and plaintiff will be given leave to make a motion to file an amended complaint

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and to submit a fourth amended complaint.

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BACKGROUND
This case is proceeding on the Eighth Amendment claim in plaintiff’s second amended

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complaint (“SAC”) against defendant Hlaing, the only remaining defendant in this action. (See

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June 20, 2017 Order (ECF No. 32).) Plaintiff contends defendant Hlaing reviewed his appeals

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challenging doctors’ failure to provide him adequate pain medication and failed to take action to

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provide him adequate medication. (See SAC (ECF No. 25).)
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On October 2, 2017, defendant filed a motion to dismiss. (ECF No. 41.) The court

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granted defendant’s motion with respect to plaintiff’s claims involving conduct prior to October

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2014 and denied the motion with respect to plaintiff’s claims involving conduct occurring after

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that date. (ECF Nos. 62, 71.)

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On December 21, 2017, plaintiff filed a document entitled Motion for Leave to Add More

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Defendants. (ECF No. 51.) Therein, plaintiff stated simply that Drs. Ratienza, Bathea, and

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Monks also violated his civil rights. In an order filed March 20, 2018, the court denied plaintiff’s

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motion. The court informed plaintiff that a motion to amend the complaint must include a copy of

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the new, amended complaint. (ECF No. 62.) The court further informed plaintiff that an

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amended complaint must “identify each defendant and the action that defendant took that violated

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his constitutional right” in a “short, plain statement.” (Id. at 13.) In addition, plaintiff was

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warned that an amended complaint supersedes prior complaints. Therefore, once plaintiff files an

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amended complaint, his prior complaints have no relevance in this action. (Id. at 14.)

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On April 23, 2018, plaintiff filed a Third Amended Complaint (“TAC”). (ECF No. 66.)

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In the TAC, plaintiff identifies only defendants Ratienza, Bathea, and Monks. Plaintiff does not

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mention current defendant Hlaing.

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On May 10, 2018, defendant filed a motion to strike the TAC. (ECF No. 68.) Defendant

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argues plaintiff failed to file a motion along with the TAC. Petitioner filed an opposition (ECF

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No. 69) and defendant filed a reply (ECF No. 70).

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MOTION TO STRIKE

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Defendant argues simply that plaintiff must file a motion if he wishes to amend his

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complaint. (ECF No. 68.) Plaintiff argues that he filed a motion in January. (ECF No. 69.)

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There are two problems with plaintiff’s argument. First, the document filed in January did

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nothing more than list the three new defendants and state, summarily, that they violated plaintiff’s

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civil rights. (ECF No. 51.) That motion is not sufficient to show why plaintiff should be

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permitted to bring those defendants into this action. The second problem is that the court’s March

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20 order instructed plaintiff to “file a new motion to amend his complaint and a copy of the new

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complaint.” (ECF No. 62 at 12.) While this court must treat pro se filings liberally, and while
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amending pleadings should be permitted “with extreme liberality,” a motion to amend is required

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so that plaintiff can show that he satisfies the four factors under Foman v. Davis, 371 U.S. 178

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(1962) to justify a court order permitting him to amend his complaint. Those factors are: undue

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delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party.

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United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981).
A review of plaintiff’s TAC shows that two factors appear to be satisfied. Plaintiff is

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attempting to add defendants whose conduct is fairly recent, so there is no undue delay, and

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nothing about his TAC indicates that he is attempting to amend his complaint in bad faith.

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However, plaintiff does not show that amendment would not be futile. In the TAC, plaintiff fails

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to state cognizable claims against any of the new defendants. Plaintiff does not explain just what

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each defendant knew or just what each defendant did or did not do. In addition, the court notes

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that plaintiff did not mention current defendant Hlaing in the TAC. If plaintiff wishes to continue

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this action against Hlaing, he must include Hlaing as a defendant in the new complaint and must

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again make specific allegations against Hlaing. Finally, plaintiff must also show why defendant

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Hlaing is not prejudiced by his amendments to the complaint.

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Plaintiff is reminded that to state a claim for a violation of the Eighth Amendment he
must:

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1. Identify his serious medical need;

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2. Identify each defendant;

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3. Briefly, but specifically, describe just what each defendant did or did not do;

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4. Explain why each defendant’s conduct exhibits deliberate indifference to plaintiff’s

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serious medical need. Plaintiff must show each defendant was aware of his serious

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medical need, that each defendant had the authority to do something about that

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medical need, and that each defendant took action that was medically unacceptable

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under the circumstances. See Toguchi v. Soon Hwang Chung, 391 F.3d 1051, 1057-

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58 (9th Cir. 2004); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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For these reasons, defendant’s motion to strike will be granted and plaintiff will be

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permitted to file a motion to amend his complaint along with a copy of a fourth amended

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complaint that complies with the court’s instructions in the March 20 order and herein.

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Therefore, IT IS HEREBY ORDERED as follows:

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1. Defendant’s motion to strike (ECF No. 68) is granted;

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2. Plaintiff’s Third Amended Complaint (ECF No. 66) is stricken;

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3. Within thirty (30) days of the date of this order, plaintiff may file a motion to amend

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his complaint and file a fourth amended complaint. The amended complaint must bear

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the docket number assigned this case and must be labeled “Fourth Amended

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Complaint.” If plaintiff does not file a new motion to amend his complaint, this case

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will proceed on his claims against defendant Hlaing in his second amended complaint.

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4. The Clerk of the Court is instructed to provide plaintiff with a copy of the form for a
Civil Rights Complaint by a Prisoner.
Dated: June 12, 2018

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DLB:9
DB/prisoner-civil rights/juar1996.tac mts

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