Uriarte v. Schwarzenegger, et al

Filing 246

ORDER Adopting 211 Report and Recommendation; and Denying 192 Motion for Leave to File a Third Amended Complaint. Signed by Judge Michael M. Anello on 12/19/2011. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FRANCISCO URIARTE,

CASE NO. 06 CV 01558 MMA (WMc)
Plaintiff,

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ORDER ADOPTING REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE;

vs.

[Doc. No. 211]

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DENYING PLAINTIFF’S MOTION
FOR LEAVE TO FILE A THIRD
AMENDED COMPLAINT

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ARNOLD SCHWARZENEGGER et al.,
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Defendants.

[Doc. No. 192]

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BACKGROUND

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Plaintiff Francisco Uriarte, a state prisoner proceeding pro se and in forma pauperis, filed

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this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to United

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States Magistrate Judge William McCurine, Jr. pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil

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Local Rule 72.3. On March 14, 2011, Plaintiff submitted a motion for leave to file a third

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amended complaint, to add a new defendant and a new claim for “deliberate indifference” against

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Defendants Hernandez, Ritter and Jenkin. [Doc. No. 192.] Defendants opposed Plaintiff’s motion

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on March 23 [Doc. No. 193] and Plaintiff filed a reply on April 12 [Doc. No. 196].

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DISCUSSION

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On October 12, 2011, Judge McCurine issued a well-reasoned and thorough Report

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containing findings and conclusions, upon which he bases his recommendation that the Court deny

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Plaintiff’s motion to file a third amended complaint. [Doc. No. 211.] On November 14, 2011,

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Plaintiff filed Objections to the Report. [Doc. No. 232.] Defendants did not object to Judge

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McCurine’s Report, nor file a reply to Plaintiff’s objections.

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Under 28 U.S.C. § 636(b)(1)(C), in reviewing the magistrate judge’s report and

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recommendation, the district court “shall make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate judge.” Here, Plaintiff objects to the Report

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on the grounds that the Magistrate Judge applied the incorrect legal standard and therefore failed

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to consider the factors identified by the Ninth Circuit to determine whether leave to amend should

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be permitted. The Court has considered the merits of each of Plaintiff’s objections and conducted

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a de novo review of the entire record and Report. Upon due consideration, the Court overrules

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Plaintiff’s objections and finds that Judge McCurine correctly recommended that Plaintiff’s

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motion for leave to amend be denied.

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Judge McCurine identified the correct legal standard, considered relevant case law,

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analyzed the applicable factors identified by the Ninth Circuit, and reached sound conclusions that

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this Court has no reason to reject. Plaintiff concedes Judge McCurine’s recommendation is based

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on his conclusion that three considerations weigh in favor of denying Plaintiff’s motion.

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Nevertheless, Plaintiff asserts the Court must also find bad faith, futility of amendment, or

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prejudice to Defendants, to deny his motion for leave to amend. [Doc. No. 232, p.5-6.] Plaintiff’s

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position is without merit.

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Contrary to Plaintiff’s assertion, the law does not require the Court to expressly consider

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each of the five factors in every case; in many cases, some factors will be more probative and

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warrant more discussion than others. See, e.g., Sisseton-Wahpeton Sioux Tribe v. United States, 90

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F.3d 351, 356 (9th Cir. 1996) (finding two factors dispositive). Here, Judge McCurine reasonably

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concluded the relevant factors weighed in favor of denying Plaintiff’s request for leave to amend.
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For example, the Report correctly notes the Court already granted Plaintiff leave to amend his

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complaint twice. Since initiating this action in 2006, Plaintiff has had ample opportunity to amend

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his claims. In addition, when the Court granted Plaintiff’s second request for leave to amend on

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August 26, 2010, the Court expressly advised Plaintiff that, “absent extraordinary circumstances,

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no further amendments shall be permitted.” [Doc. No. 145.] Thus, Judge McCurine properly

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concluded the “prior amendment” factor does not weigh in Plaintiff’s favor, as he has not

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identified any extraordinary circumstances that justify an additional amendment at this late stage.

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Sisseton-Wahpeton Sioux Tribe, 90 F.3d at 355 (“The district court’s discretion to deny leave to

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amend is particularly broad where plaintiff has previously amended the complaint.”).

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Similarly, Plaintiff’s objection that Judge McCurine should not have considered the

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procedural posture of this action, because it is not a factor identified by the Ninth Circuit, is also

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without merit. The procedural posture of this action directly bears on the “undue delay” factor.

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As the Ninth Circuit stated in AmerisourceBergen, “in evaluating undue delay, we also inquire

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whether the moving party knew or should have known the facts and theories raised by the

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amendment in the original pleading.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d

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946, 953 (2006) (citations omitted). The Report expressly notes Plaintiff should have known

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about the claim he seeks to add against Defendants Hernandez, Ritter and Jenkin since

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approximately August 2008, but he did not request leave to amend until March 2011. The Ninth

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Circuit has held “that an eight month delay between the time of obtaining a relevant fact and

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seeking [] leave to amend is unreasonable.” Id. (citing Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 799

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(9th Cir. 1991)). The Court finds Plaintiff’s purported explanation for the delay unpersuasive.

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Accordingly, the Court concludes the Report sufficiently considers the applicable factors

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set forth by the Ninth Circuit, and Judge McCurine appropriately concluded two factors—undue

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delay and prior amendments—are controlling given the factual background and procedural posture

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of this action.

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CONCLUSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of
this case. Having carefully reviewed the entire file, the Court finds Judge McCurine’s Report and
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Recommendation to be supported by the record and based on a proper analysis. Accordingly, the

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Court ADOPTS the Report and Recommendation in its entirety and DENIES Plaintiff’s motion

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requesting leave to file a Third Amended Complaint.

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IT IS SO ORDERED.

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DATED: December 19, 2011

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Hon. Michael M. Anello
United States District Judge

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