Crumb v. Hasselblad et al

Filing 27

ORDER: (1) Granting Plaintiff's Motion to Dismiss Complaint and for Leave to File Second Amended Complaint (ECF No. 26 ); (2) Denying Defendants' Motion to Dismiss as Moot (ECF No. 16 ); and (3) Denying Plaintiff's Motion for Leave to File First Amended Complaint and for Court Order Regarding US Marshal Service upon Defendant J. Ramero (ECF Nos. 21 , 24 ). If Plaintiff fails to file and serve his Second Amended Complaint by 7/10/2017, the Court will enter a final Order dismissing this civil action. Signed by Judge Barry Ted Moskowitz on 5/22/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FRAYNO CRUMB,
CDCR #H-20376,

ORDER:

Plaintiff,

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Case No.: 3:16-cv-00581-BTM-NLS

1) GRANTING PLAINTIFF’S
MOTION TO DISMISS
COMPLAINT AND FOR LEAVE
TO FILE SECOND AMENDED
COMPLAINT [ECF No. 26]

vs.

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MARK HASSELBLAD, Correctional
Officer, DAVID STRAYHORN,
Correctional Officer; J. RAMERO,
Correctional Officer; R. OLSON,
Correctional Counselor II Inmate Appeals,

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Defendants.

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2) DENYING DEFENDANTS’
MOTION TO DISMISS AS MOOT
[ECF No. 16]; AND

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3) DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE
FIRST AMENDED COMPLAINT
AND FOR COURT ORDER
REGARDING U.S. MARSHAL
SERVICE UPON DEFENDANT
J. RAMERO
[ECF Nos. 21, 24]

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FRAYNO CRUMB (“Plaintiff”), is currently incarcerated at Kern Valley State

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Prison (“KVSP”) in Delano, California, and is proceeding in pro se in this civil action filed
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3:16-cv-00581-BTM-NLS

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pursuant to 42 U.S.C. § 1983. He claims Defendants Strayhorn, Hasselblad, and Ramero,

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all Correctional Officers at Richard J. Donovan Correctional Facility (“RJDCF”), used

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excessive force and refused medical treatment for his injuries while he was incarcerated

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there on January 27, 2015. Plaintiff further contends Defendant Olson thwarted his efforts

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to file an administrative complaint following the incident. (ECF No. 1 at 1-2, 10-11.)

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I.

Procedural Background

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On November 11, 2016, the Court granted Plaintiff leave to proceed in forma

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pauperis (“IFP”), screened his Complaint (ECF No. 1) pursuant to 28 U.S.C. § 1915(e)(2)

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and § 1915A, and directed the U.S. Marshal to effect service upon the Defendants pursuant

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to 28 U.S.C. § 1915(d) and FED. R. CIV. P. 4(c)(3) (ECF No. 8). See Puett v. Blandford,

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895 F.2d 630, 634 (9th Cir. 1990) (“An incarcerated pro se plaintiff proceeding in forma

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pauperis is entitled to rely on the U.S. Marshal for service of summons and complaint”).

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The U.S. Marshal successfully executed service upon Defendants Hasselblad, Strayhorn,

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and Olson (ECF Nos. 11-13), but the summons was returned unexecuted as to Defendant

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J. Ramero on December 28, 2016 (ECF No. 10), with a note indicating that “per Litigation

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Coordinator, RJDCF has no employee by the name of J. Ramero.” (ECF No. 10).

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After requesting and being granted an extension of time in which to respond (ECF

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Nos. 14, 15), on March 14, 2017, Defendants Hasselblad, Strayhorn, and Olson filed a

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Motion to Dismiss portions of Plaintiff’s Complaint pursuant to FED. R. CIV. P. 12(b)(6)

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(ECF No. 16). Defendants served Plaintiff with a copy of their Motion via U.S. Mail on

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the same day (ECF No. 16-1 at 7).

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After the Court set a briefing schedule (ECF No. 17), Plaintiff requested an extension

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of time in which to respond (ECF No. 19). On April 12, 2017, the Court granted Plaintiff’s

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request (ECF No. 22), and on the same day, Plaintiff filed a “Motion to Petition the Court

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to Order the CDCR [California Department of Corrections and Rehabilitation] to Give

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Forwarding Address for Correctional Officer J. Ramero” so that the U.S. Marshal may re-

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attempt service (ECF No. 21).

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Two days later, on April 14, 2017, Plaintiff filed a Motion for Leave to file an

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Amended Complaint (ECF No. 24 at 1-4), attached to which is his proposed First Amended

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Complaint (“FAC”) (ECF No. 24 at 5-70). Both Plaintiff’s Motion to Amend, as well as

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his proposed FAC, were signed by him on April 7, 2017. (Id. at 2, 25.) In a separate

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“Declaration of Service” (ECF No. 24 at 4), Plaintiff swears under penalty of perjury to

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have placed his Motion and Proposed FAC in the institutional mail at KVSP on April 9,

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2017. (Id. at 3.) Then, on April 26, 2017, before the Court could rule on Plaintiff’s Motion

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to File a First Amended Complaint, and in lieu of an Opposition to Defendants’ Motion to

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Dismiss, he filed a “Motion to Dismiss” his own original Complaint, and requesting leave

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to file a Second Amended Complaint (“SAC”) re-alleging his Eighth Amendment

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excessive force claims against Defendants Strayhorn and Hasselblad only (ECF No. 26).

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II.

Plaintiff’s Motions to Dismiss and For Leave to Amend

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Pursuant to FED. R. CIV. P. 15(a), a party “may amend its pleading once as a matter

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of course … within 21 days after service of a motion under Rule 12(b)…” FED. R. CIV. P.

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15(a)(1)(B). “In all other cases, a party may amend its pleading only with the opposing

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party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2).

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In this case, Plaintiff requires leave to amend because, even under the prison

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“mailbox rule,” his Motion seeking leave to file a FAC was constructively filed on April

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9, 2017—the date he placed it in the U.S. Mail at KVSP—and more than 21 days after

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March 14, 2017, when he was served with Defendants’ Motion to Dismiss his original

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Complaint pursuant to FED. R. CIV. P. 12(b)(6). See ECF No. 24 at 3; ECF No. 16-1 at 7;

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Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice of appeal filed by a pro se prisoner

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is deemed to be “filed” when it is delivered to prison authorities for forwarding to the

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district court); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“Houston mailbox

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rule applies to § 1983 suits filed by pro se prisoners.”). His most recent Motion seeking

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leave to file a SAC, was filed a week later—on April 16, 2017—the date he swears to have

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deposited it in the institutional mail at KVSP. See ECF No. 26 at 5.

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However, Rule 15(a)(2) further provides that “[t]he court should freely give leave

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when justice so requires,” and “this mandate is to be heeded.” Foman v. Davis, 371 U.S.

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178, 182 (1962) (internal quotation marks omitted); Sharkey v. O’Neal, 778 F.3d 767, 774

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(9th Cir. 2015). The intent of the rule is to “facilitate decision on the merits, rather than on

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the pleadings or technicalities,” Chudacoff v. Univ. Med. Center of S. Nev., 649 F.3d 1143,

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1152 (9th Cir. 2011), and this policy is “to be applied with extreme liberality.” Owens v.

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Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (citation omitted).

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When evaluating a motion to amend under Rule 15, the Court considers: (1) whether

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there has been undue delay, bad faith, or dilatory motive on the part of the moving party;

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(2) whether there have been repeated failures to cure deficiencies by previous amendments;

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(3) whether there has been undue prejudice to the opposing party “by virtue of the

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allowance of the amendment”; and (4) whether amendment would be futile. Sharkey, 778

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F.3d at 774 (quoting Foman, 371 U.S. at 182). Prejudice is the “touchstone of the inquiry

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under rule 15(a),” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

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2003) (citation omitted), but “[a]bsent prejudice, or a strong showing of any of the

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remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting

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leave to amend.” Id. (emphasis original).

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Here, the Court finds no delay, bad faith or dilatory motive on Plaintiff’s part. In

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fact, amendment would have been proper “as a matter of course” had he filed his Motion

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to file his FAC just a few days earlier. See FED. R. CIV. P. 15(a)(1)(a); Sharkey, 778 F.3d

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at 774. The Court further finds no named Defendant would be prejudiced at this stage of

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this proceedings by Plaintiff’s amendment, for his Motion seeking leave to file a FAC

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sought to merely to “chang[e] [the] statement of jurisdiction,” (ECF No. 24 at 1), and his

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proposed FAC (ECF No. 24 at 5-25) sought to simply re-allege and/or supplement his

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previously alleged causes of action against the same four RJDCF officials named in his

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original Complaint, one of whom has yet to be served. Id.; see also DCD Programs LTD

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v. Leighton, 833 F.2d 183, 187-88 (9th Cir. 2006) (finding amendment proper when

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discovery has not closed, no pending trial date had yet to be set, and case as a whole
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remained in its early stages.). Moreover, in Plaintiff’s latest Motion seeking leave to file a

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SAC, he concedes he cannot “cure” the pleading deficiencies in his original Complaint as

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to Defendants R. Olson and J. Ramero, and therefore, does not oppose Defendants’ Motion

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to Dismiss and instead seeks to dismiss it himself—provided he is granted leave to file a

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SAC “alleging that Hasselblad and Strayhorn violated the Eighth Amendment by using

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excessive force against him on January 27, 2015, at Donovan prison.” (ECF No. 26 at 2).

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Based on this concession, the Court further finds that amendment as to Strayhorn

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and Hassleblad would not be futile—for it has already determined Plaintiff’s excessive

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force allegations were pleaded sufficient to survive the sua sponte screening required by

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28 U.S.C. § 1915(e)(2) and § 1915A(b), and the “low threshold” justifying U.S. Marshal

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service, see ECF No. 8 at 5; Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012), and

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neither Strayhorn nor Hasselblad sought to dismiss Plaintiff’s Eighth Amendment claims

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pursuant to FED. R. CIV. P. 12(b)(6). See ECF No. 16-1 at 3-6.

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Thus, because all four Foman factors weigh in Plaintiff’s favor, his Motion to

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Dismiss and/or for Leave to File a Second Amended Complaint, alleging Eighth

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Amendment excessive force claims against Defendants Strayhorn and Hasselblad only

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(ECF No. 26) is GRANTED.

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Consequently, Plaintiff’s Motions for Leave to file a FAC (ECF No. 24) and his

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Motion for a Court Order regarding U.S. Marshal Service as to Defendant J. Ramero (ECF

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No. 21) are DENIED as moot, as is Defendants’ Motion to Dismiss Plaintiff’s original

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Complaint (ECF No. 16-1). See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896

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F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”).

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III.

Conclusion and Order

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Accordingly, the Court hereby:

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1)

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GRANTS Plaintiff’s Motion to Dismiss Complaint with leave to Amend

pursuant to FED. R. CIV. P. 15(a)(2) (ECF No. 26);

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2)

DISMISSES Defendants R. Olson and J. Ramero as parties in this matter;

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3)

DENIES Plaintiff’s Motions for Leave to File his proposed First Amended
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Complaint (ECF No. 24), and for a Court Order to the CDCR Regarding U.S. Marshal

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Service upon Correctional Officer J. Ramero (ECF No. 21) as moot;

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4)

DENIES Defendants’ Motion to Dismiss Plaintiff’s original Complaint

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pursuant to FED. R. CIV. P. 12(b)(6) (ECF No. 16), and VACATES the hearing date

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previously set on July 7, 2017 as to that Motion (ECF No. 22) without prejudice as moot

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and in light of Plaintiff’s anticipated amendment; and

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DIRECTS Plaintiff to file a Second Amended Complaint, alleging Eighth

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Amendment excessive force claims arising on January 27, 2015, at RJDCF against

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Defendants D. Strayhorn and M. Hasselblad only, and to serve it upon their counsel of

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record, no later than Monday, July 10, 2017. Plaintiff is cautioned that his Second

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Amended Complaint must be complete by itself without reference to either his original or

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his proposed first amended pleading (ECF Nos. 1, 24). See S.D. CAL. CIVLR 15.1; Hal

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Roach Studios, 896 F.2d at 1546; Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.

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2012) (noting that claims dismissed with leave to amend which are not re-alleged in an

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amended pleading may be “considered waived if not repled.”). If Plaintiff fails to file and

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serve his Second Amended Complaint by July 10, 2017, the Court will enter a final Order

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dismissing this civil action based on his failure to prosecute. See Lira v. Herrera, 427 F.3d

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1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix

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his complaint, a district court may convert the dismissal of the complaint into dismissal of

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the entire action.”).

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IT IS SO ORDERED.
Dated: May 22, 2017

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