Hammler v. Alvarez et al

Filing 15

ORDER granting 8 Motion to Withdraw Count Three; denying 10 Motion to Provide Advisory Opinion on Count Two. Signed by Magistrate Judge William V. Gallo on 7/9/2018. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 18-CV-326-AJB(WVG)

ALLEN HAMMLER,
Plaintiff,

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v.

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(1) ORDER GRANTING MOTION
TO WITHDRAW COUNT THREE
[Doc. No. 8], and

ALVAREZ, ET AL.,

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Defendants.

(2) ORDER DENYING MOTION TO
PROVIDE ADVISORY OPINION ON
COUNT TWO [Doc. Nos. 8, 10]

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Plaintiff Allen Hammler, currently incarcerated and proceeding pro se, has filed a

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motion to withdraw count three and requests an advisory opinion on the sufficiency of

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count two of his complaint. (Doc. No. 8 at 1, Doc. No. 10 at 1.)

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I.

BACKGROUND

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On February 9, 2018, Plaintiff filed a civil rights complaint of three counts pursuant

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to 42 U.S.C. § 1983 against Defendants Alvarez, Dies, Barrientos, and Hough. (Doc. No.

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1 at 2-16.) Under count one, Plaintiff claims Defendants violated his Eighth Amendment

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rights through use of unnecessary and excessive force. (Doc. No. 1 at 3.) Under count

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two, Plaintiff claims Defendants violated his First Amendment rights through use of

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retaliation and selective enforcement. (Doc. No. 1 at 12.) Under count three, Plaintiff

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18-CV-326-AJB(WVG)

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claims Defendants violated his Fourteenth Amendment right to due process through use of

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libel and slander. (Doc. No. 1 at 15.)

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Plaintiff failed to pay the civil filing fee required by 28 U.S.C. § 1914(a), and, on

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February 26, 2018, filed a motion for leave to proceed in forma pauperis under 28 U.S.C.

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§ 1915(a), claiming he could not pay the fee due to poverty. (Doc. No. 3 at 1.) On April

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25, 2018, his motion was granted and a U.S. Marshal was ordered to effect service upon

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Defendants on Plaintiff’s behalf. (Doc. No. 5 at 5-6.) Defendants were served on that

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same day. (Doc. No. 6 at 1.)

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II.

DISCUSSION

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On May 14, 2018 and May 18, 2018, Plaintiff filed motions to withdraw count three

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and for an advisory opinion on count two of his Complaint. (Doc. No. 8 at 1, Doc. No. 10

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at 1.) Plaintiff’s motion to withdraw is construed as a motion to amend his pleading under

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Rule 15 of the Federal Rules of Civil Procedure.

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A.

Motion to Withdraw Count Three

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Under Rule 15(a), a party has the right to amend his pleading “as a matter of course”

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within twenty-one days of serving it, or alternatively, with either the opposing party’s

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written consent or “the court’s leave.” Fed. R. Civ. P. 15(a)(1), (2). Leave should be freely

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given when justice so requires, Fed. R. Civ. P. 15(a)(2), and Rule 15’s policy of favoring

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amendments of pleadings “should be applied with extreme liberality.” United States v.

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Webb, 655 F.2d 977, 979 (9th Cir. 1981). However, this extreme liberality is subject to

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four limitations. A motion for leave to amend pleadings should be denied where the

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amendment would cause undue delay, is sought in bad faith, constitutes an exercise in

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futility, or would cause the opposing party undue prejudice. See Foman v. Davis, 371 U.S.

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178, 182 (1962). While all four factors are relevant, whether the amendment would cause

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undue prejudice to the opposing party is most crucial. Howey v. United States, 481 F.2d

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1187, 1190 (9th Cir. 1973).

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Under Rule 15(a)(2), the Court finds that Plaintiff’s requested amendment to

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withdraw count three of the Complaint would not cause undue delay, is not sought in bad
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faith, does not constitute an exercise in futility, and does not cause undue prejudice to the

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opposing party. See Foman, 371 U.S. at 182.

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Therefore, as leave to amend should be given liberally, see Webb, 655 F.2d at 979,

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the Court GRANTS Plaintiff’s motion to amend his pleading to withdraw count three.

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(Doc. No. 8 at 1.) Accordingly, the original Complaint in this case—filed as Docket No.

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1—minus count three shall be construed as the First Amended Complaint.

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B.

Motion to Provide Advisory Opinion on Count Two

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Courts do not provide advisory opinions. See Maldonado v. Lynch, 786 F.3d 1155,

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1165 (9th Cir. 2015) (Gould, C.J., dissenting) (citing Flast v. Cohen, 392 U.S. 83, 96 n.14

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(1968) (“The rule against advisory opinions was established as early as 1793.”).

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Defendants must file either a motion to dismiss or an Answer within 60 days of June 6,

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2018. (See Doc. Nos. 11-14.) As Defendants have the opportunity to challenge or accept

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count two of the Complaint, the Court DENIES Plaintiff’s motion for an advisory opinion.

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(Doc. No. 10 at 1.)

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IT IS SO ORDERED.

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DATED: July 9, 2018

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18-CV-326-AJB(WVG)