Johnson v. Figueroa et al

Filing 71

ORDER Granting (Docs. 55 , 56 ) Motions to File First Amended Complaint, Directing U.S. Marshal to Effect Service of First Amended Complaint, and Scheduling Case Management Conference. The Court schedules a Case Management Conference on August 11, 2010 at 9:30 a.m. in the chambers of the Honorable Louis S. Porter. Defendants' counsel shall appear in person. Signed by Magistrate Judge Louisa S Porter on 6/30/2010. (IFP package prepared) (All non-registered users served via U.S. Mail Service)(cap) (jrl).

-JMA Johnson v. Figueroa et al

Doc. 71

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA CHARLES JOHNSON, Plaintiff, v. A. FIGUEROA et al., Defendants. Civil No. 08-cv-1242-POR (JMA)

ORDER GRANTING MOTIONS TO FILE FIRST AMENDED COMPLAINT, DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED COMPLAINT, AND SCHEDULING CASE MANAGEMENT CONFERENCE [Docs. 55, 56]

I. INTRODUCTION On April 1, 2010, Plaintiff filed a Motion to File a First Amended Complaint. [Doc. 55.] Specifically, Plaintiff asks to amend his Complaint to accomplish the following: (1) expand allegations against Defendant Orduno; (2) add a new Defendant, Dr. Hjerpe; and (3) "delete the retaliation claim." Id. In addition, Plaintiff filed a Motion to Join a Defendant to the Complaint, which repeats the request to add Dr. Hjerpe as a Defendant. [Doc. 56.] At present, the motions are fully briefed. Based on a review of the parties' pleadings, the proposed First Amended Complaint,1 and for the reasons set forth below, the Court hereby GRANTS Plaintiff's motions to amend. II. DISCUSSION A. Parties' Arguments Plaintiff explains that he learned of new information after receiving discovery of his medical Plaintiff submitted the First Amended Complaint as an exhibit to his motion. [Doc. 55, Ex. 1.] -108-cv-1242-POR (JMA)

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records in October 2009. First, he discovered that Defendant Orduno had stopped scheduling his physical therapy appointments. Thus, Plaintiff seeks to add a "one paragraph factual allegation" that Orduno stopped scheduling his appointments. Second, Plaintiff contends there is an inconsistency between Dr. Hjerpe's notes in the medical records and his February 26, 2010 declaration, which allegedly demonstrates Dr. Hjerpe's "complicity" in the "conspiracy." Defendants argue Plaintiff delayed, without justification, in seeking leave to amend, and that this untimely amendment would prejudice the defense. First, Defendants highlight that Plaintiff requested his medical records in May 2009 from prison officials at Kern Valley State Prison, rather than making a direct request from Defendants (employed at Calpatria State Prison). Second, Defendants argue that Plaintiff waited over five months, after receiving his medical records, to file his motion to amend. B. Analysis Leave to amend should be freely given "when justice so requires." Fed.R.Civ.P. 15(a)(2). Furthermore, "[t]his policy is applied even more liberally to pro se litigants." Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). In light of this liberal standard, the Court can consider the following factors: "(1) undue delay, (2) bad faith, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether plaintiff has previously amended his complaint." Castle v. Knowles, 2010 WL 2232394, at *4 (E.D. Cal. June 3, 2010)(holding these factors apply to a pro se prisoner's motion to amend the complaint)(quoting factors set forth by W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir.1991)). First, although Plaintiff delayed in filing his motion to amend, "[s]trict time limits ought not to be insisted upon where restraints resulting from a pro se plaintiff's incarceration prevent timely compliance with court deadlines." Eldridge, 832 F.2d at 1136. Furthermore, the Court does not find that Plaintiff seeks to amend in bad faith, and Defendants have failed to identify meaningful prejudice that would result from an amendment of the complaint. Additionally, "construing [Plaintiff's] pleadings liberally in [his] favor," Shaw v. County of San Diego, 2009 WL 1796532 (S.D. Cal. June 24, 2009), Plaintiff's new allegations are not futile as a matter of law. Finally, this is Plaintiff's first request to amend the Complaint. In light of the foregoing, the Court GRANTS -2-

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Plaintiff's motion to amend the Complaint. III. CONCLUSION AND ORDER Plaintiff's Motion to File First Amended Complaint [Doc. 55] and Motion to Join a Defendant to the Complaint [Doc. 56] are hereby GRANTED. Accordingly, IT IS HEREBY ORDERED: 1. The Clerk of Court shall file Plaintiff's First Amended Complaint [Doc. 55-1] as a new entry on the docket of this case. 2. The Clerk shall issue a summons upon Defendants as to Plaintiffs First Amended Complaint. In addition, the Clerk shall provide Plaintiff with: (1) a blank U.S. Marshal Form 285 for Defendants Dr. Hjerpe, T. Davis, and Sgt. Preciado; (2) a certified copy of this Order; (3) certified copies of his First Amended Complaint and the summons for purposes of serving Defendants. Upon receipt of this "IFP Package," Plaintiff is directed to complete the Form 285s as completely and accurately as possible, and to return them to the United States Marshal according to the instructions provided by the Clerk in the letter accompanying his IFP package. Thereafter, the U.S. Marshal shall serve a copy of the First Amended Complaint and summons upon each Defendant as directed by Plaintiff on each Form 285. 3. Defendants are thereafter ORDERED to reply to Plaintiff's First Amended Complaint within the time provided by the applicable provisions of Federal Rule of Civil Procedure 12(a). 4. The Court schedules a Case Management Conference on August 11, 2010 at 9:30 a.m. in the chambers of the Honorable Louisa S Porter, First Floor, 940 Front Street, San Diego, California. Defendants' counsel shall appear in person. Furthermore, // // // // // -3-

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Defendants' counsel shall make arrangements with the state prison for Plaintiff to appear telephonically. The Court authorizes Plaintiff to call into Judge Porter's chambers at 9:30 a.m. on the day of the conference. Plaintiff may contact chambers at [phone]. IT IS SO ORDERED.

DATED: June 30, 2010

LOUISA S PORTER United States Magistrate Judge

The Honorable Jan M. Adler All parties

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