Gregory v. San Diego, County of et al

Filing 39

ORDER: The Motion for Leave to File Third Amended Complaint is granted. (Doc. 35 ). Plaintiff shall file the proposed third amended complaint attached to the motion within ten (10) days of the date of this Order. Signed by Judge William Q. Hayes on 1/7/2015. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PATRICIA A. GREGORY,

Civil No. 13cv1016-WQH-JMA

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Plaintiff,
vs.
COUNTY OF SAN DIEGO;
WILLIAM GORE, Sheriff; Counselor
JENNIFER MONTIEL and DOES 1
through XX, inclusive,,

ORDER

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Defendants.
HAYES, Judge:
The matter before the Court is Plaintiff’s Motion for Leave to File Third
Amended Complaint. (ECF No. 35).
BACKGROUND
On April 29, 2013, Plaintiff Patricia A. Gregory, proceeding se, initiated this
pro
action by filing the Com plaint. (ECF No. 1). On June 24, 2013, Defendants filed a
motion to dismiss Plaintiff’s complaint. (ECF No. 10). On October 15, 2013, the Court
issued an Order granting Defendants’ motion to dismiss. (ECF No. 16).
On January 21, 2014, Plaintiff filed a first amended complaint. (ECF No. 21).
On February 2, 2014, Defendant filed a motion to dismiss the first amended complaint.
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(ECF No. 22). On May 14, 2014, the Cour t issued an Order granting Defendants’
motion to dismiss the first amended complaint. (ECF No. 25).
On July 28, 2014, Gregory filed a second am ended complaint. (ECF No. 30).
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13cv1016-WQH-JMA

1 On July 31, 2014, Defendants filed a m
otion to dismiss the second amended complaint.
2 (ECF No. 31). On October 10, 2014, the Court issued an Order granting Defendants’
3 motion to dismiss the second amended complaint without prejudice and “with leave to
4 file a motion to file an amended complaint within thirty days of the date of this order.”
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On November 7, 2014, Plaintiff filed

6 Amended Complaint. (ECF No. 35).

the Motion for Leave to File Third

On December 1, 2014, Defendants fi led a

7 response. (ECF No. 36). On December 5, 2014, Plaintiff filed a reply. (ECF Nos. 37,
8 38).
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CONTENTIONS OF PARTIES
Plaintiff contends that significant m aterial changes are provided in the third

aintiff contends that she provides a new and
11 amended complaint. (ECF No. 38 at 2). Pl
12 supportable argument to address the issue of the Heck v. Humphrey, 512 U.S. 477
13 (1994) bar. Id. at 3. Plaintiff contends that in the third am ended complaint Plaintiff
14 clearly sets forth facts to support a claim that she was unable to file a habeas petition
15 challenging her criminal conviction because of the closing of the law library. Id. at 4.
16 Plaintiff further contends that Plaintiff contends that she provides extensive case law
17 to support her claims and that the failures ofher attorneys were not properly addressed
18 because Defendants blocked all access to the courts. Id. at 6. Plaintiff asserts that the
19 “amendment could not possibly prejudice De fendants because the clai ms of the
20 amended complaint arise out of the sam e actions and facts and circumstances as set
21 forth in the original complaint.” (ECF No. 35-1 at 6). Plaintiff asserts that she “has not
22 added any additional exhibits and is still seeking th e same amount of damages.” Id.
23 Plaintiff asserts that “[g] ranting [] Plaintiff’s motion to amend will not cause undue
24 delay because Plaintiff timely filed this motion pursuant to the Co

urt’s order of

25 submission within 30 days.” Id. Plaintiff asserts that she” does not request leave to
26 amend in bad faith or for dilatory reasons,” “[r]ather Plaintiff requests leave to amend

accurately the facts that are the basis for this
27 in order to clarify and re-characterize more
28 claim.” Id.
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13cv1016-WQH-JMA

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Defendants contend that leave to amend would be futile because Plaintiff has

2 already amended twice and nothing m aterial has changed. (ECF No. 36 at 1).
3 Defendants contend that a comparison of the third amended complaint and the second

endments restate her prior allegations and
4 amended complaint shows that Plaintiff’s am
5 reiterate that her attorn eys were incompetent. Id. at 1-2. Defendants contend that
6 Plaintiff’s claim remains the same – that during her incarceration she was “denied

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7 access to the courts” because the lack of a la library caused Plaintiff to miss a deadline
8 for filing a writ petition to the Supreme Court relating to her disbarment. Id.
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Defendants further contend that Plaintiff’s new allegation that she was prevented

10 from seeking habeas relief challenging her criminal conviction is not plausible. Id.
11 Defendants contend that Plaintiff had no grounds for seeking habeas relief because she
12 plead guilty and her restitution hearing was held after she was released from custody
13 while she was represented by counsel. Id.
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RULING OF COURT
Federal Rule of Civil Procedure 15 m
andates that leave to amend “be freely given

16 when justice so requires.” Fed. R. Civ. P. 15(a). “This policy is to be applied with
17 extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th

endment, a court
18 Cir. 2003) (quotation omitted). In determining whether to allow an am
“bad faith,” “undue prejudice to the opposing
19 considers whether there is “undue delay,”
20 party,” or “futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Not
21 all of the [Foman] factors merit equal weight.... [I]t is the consideration of prejudice
22 to the opposing party that carries the greatest weight.” Eminence Capital, 316 F.3d at

aining
23 1052 (citation omitted). “Absent prejudice, ora strong showing of any of the rem
24 Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave
25 to amend.” Eminence Capital, 316 F.3d at 1052.
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After review of the m
otion and the proposed third amended complaint, the Court

end. The Court finds thatconsideration of any challenge
27 will allow Plaintiff leave to am
ended complaint should be deferred until after the
28 to the merits of the proposed third am
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13cv1016-WQH-JMA

1 amended pleading. See Netbula v. Distinct Corp., 212 F.R.D. 534, 539 (N.D. Cal.
2 2003) (“Ordinarily, courts will defer consideration of the challenges to the merits of a
3 proposed amended pleading until after leave to amend is granted and the am ended
4 pleading is filed.”).
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IT IS HEREBY ORDERED that the Motion for Leave to File Third Amended

6 Complaint is granted. (ECF No. 35). Plaintiff shall file the proposed third amended
7 complaint attached to the motion within ten (10) days of the date of this Order.
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DATED: January 7, 2015
WILLIAM Q. HAYES
United States District Judge

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