McCormack et al v. Reinke et al

Filing 30

MEMORANDUM DECISION AND ORDER granting 24 Notice and Request for Leave to Amend. Plaintiff Robert McCormack may file a First Amended Complaint within 30 days of this Order, consistent with the instructions contained herein. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb) (Main Document 30 replaced on 2/26/2013, NEF has been regenerated) (krb).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ROBERT McCORMACK,
Plaintiff,

Case No. 1:12-cv-00016-EJL

v.
BRENT REINKE, RANDY BLADES,
TERRY KIRKHAM, KEVIN KEMPF,
MICHAEL JOHNSON, JAY
CHRISTENSEN, LIZ NEVILLE,
MARTY SAUDERMAN, and JEFF
KIRMAN,

MEMORANDUM DECISION AND
ORDER

Defendants.

Pending before the Court is Plaintiff’s Motion for Leave to Amend. (Dkt. 24.)
Plaintiff seeks to add claims of retaliation, excessive force, abusive search, access to
courts and deliberate indifference. Defendants argue that the motion should be denied,
because Plaintiff has not complied with Local Rule 15.1. Defendants also argue that “the
proposed amendments have nothing to do with the subject of this lawsuit and do not
comply with Fed.R.Civ.P. 8.” (Dkt. 25 at 1-2.) Having reviewed the briefing of the
parties, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

STANDARD OF LAW
Federal Rule of Civil Procedure 15 (a) provides a party may amend a pleading
only by leave of the court after the filing of a responsive pleading, unless the opposing
party consents to the amendment. Rule 15(a), however, also provides that leave to
amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). “This policy
is to be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, 316 F.3d
1048, 1051 (9th Cir. 2003). In determining whether justice requires granting leave to
amend, court usually consider four factors: (1) bad faith; (2) undue delay; (3) prejudice to
the opposing party; and (4) futility of amendment. Roth v. Marquez, 942 F.2d 617 (9th
Cir. 1991). The party opposing the amendment bears the burden of showing the above
factors. DCD Programs Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
In exercising its discretion with regard to the amendment of pleadings, “a court
must be guided by the underlying purpose of Rule 15--to facilitate a decision on the
merits rather than on the pleadings or technicalities.” United States v. Webb, 655 F.2d
977, 979 (9th Cir. 1981). Indeed, the “Supreme Court has instructed the lower federal
courts to heed carefully the command of Rule 15(a), Fed.R.Civ.P., by freely granting
leave to amend when justice so requires.’” Gabrielson v. Montgomery Ward & Co., 785
F.2d 762, 765 (9th Cir. 1986) (quoting Howey v. United States, 481 F.2d 1187, 1190 (9th
Cir. 1973)).

MEMORANDUM DECISION AND ORDER - 2

Leave to amend should be granted even more liberally to pro se plaintiffs. Lira v.
Herrera, 427 F.3d 1164, 1176 (9th Cir. 2005) (quoting Ramirez v. Galaza, 334 F.3d 850,
861 (9th Cir. 2003)). Pro se plaintiffs should be given the opportunity to amend their
complaints if they have stated a plausible cause of action. See for example, Akao v.
Shimoda, 832 F.2d 119, 120 (9th Cir. 1987) (“It is true that the prisoners’ allegations are
not sufficiently specific and do not allege that they personally have suffered cruel or
inhuman punishment, but we cannot hold that it is ‘beyond doubt’ that they could not do
so. Therefore, we reverse and remand for the district court to allow the prisoners to file
an amendment”). Accordingly, leave to amend should be granted to pro se plaintiffs

“unless the pleading ‘could not possibly be cured by the allegation of other facts.’” Lira
v. Herrera, 427 F.3d at 1176 (quoting Ramirez v. Galaza, 334 F.3d at 861).
Nonetheless, a complaint must contain “a short and plaint statement of the claim
showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual
allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, __, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to
‘state a claim that is plausible on its face.’” Id. Facial plausibility demands more than the
mere possibility that a defendant

MEMORANDUM DECISION AND ORDER - 3

committed misconduct and, while factual allegations are accepted as true, legal
conclusions are not. Id. at 1949-50.
DISCUSSION
1.

Local Rule 15.1

Local Rule 15.1 provides the following:
A party who moves to amend a pleading must describe the type of the proposed
amended pleading in the motion (i.e., motion to amend answer, motion to amend
counterclaim). Any amendment to a pleading, whether filed as a matter of course
or upon a motion to amend, must reproduce the entire pleading as amended.
Failure to comply with this rule is not grounds for denial of the motion. The
proposed amended document will be filed at the time of filing the motion and
submitted to the Court for approval. However, typographical errors in briefs or
other documents shall be brought to the attention of the Court.
Plaintiff has filed a motion for leave to amend his complaint. He has not submitted
a proposed amended complaint, but his papers in support of the motion indicate that he
seeks to allege additional facts showing that Defendants: (1) unlawfully retaliated against
Plaintiff for his whistleblowing activities, (2) used excessive force, (3) conducted an
abusive search, (4) interfered with Plaintiff’s right to access the courts and (4) were
deliberately indifferent regarding a back injury. Given the liberal policy of Federal Rule
of Civil Procedure 15, the Court will allow Plaintiff the opportunity to file an amended
complaint as specified below.
The amended complaint must contain all of Plaintiff’s allegations in a single
pleading, and cannot rely upon or incorporate by reference prior pleadings. L. Civ. R.
15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a
MEMORANDUM DECISION AND ORDER - 4

motion to amend, shall reproduce the entire pleading as amended”). The amended
complaint shall supercede the original complaint. Once a plaintiff files an amended
complaint, the original pleading no longer serves any function in the case. Therefore, in
an amended complaint, as in an original complaint, each claim and the involvement of
each defendant must be sufficiently alleged.
Plaintiff shall set forth each cause of action. Each different factual allegation
supporting the cause of action shall be set forth in separate numbered paragraphs. The
amended complaint must be legibly written or typed in its entirety, and it should be
clearly designated as the "First Amended Complaint." Additionally, the “First Amended
Complaint” shall be filed within 30 days of this order and Plaintiff must mail a copy of
the "First Amended Complaint” to counsel for each named Defendant.
In the interests of judicial efficiency, the Court will not conduct another review of
the First Amended Complaint under 28 U.S.C. § 1915 or § 1915A, but if, after
Defendants receive the First Amended Complaint, Defendants deem it improper,
Defendants may file a motion to dismiss under Rule 12 of the Federal Rules of Civil
Procedure.
2.

Claims Against Apparent Doe Defendants
In each of the claims Plaintiff sets forth in his request for leave to amend, Plaintiff

makes certain allegations against “known and unknown parties.” Plaintiff appears to be
trying to add Doe Defendants. The use of Doe Defendants is not favored in the Ninth

MEMORANDUM DECISION AND ORDER - 5

Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9thCir. 1980). However, where the
identity of alleged defendants cannot be known prior to the filing of a complaint the
plaintiff should be given an opportunity through discovery to identify them. Id. Failure
to afford the plaintiff such an opportunity is error. See Wakefield v. Thompson, 177 F.3d
1160, 1163 (9th Cir. 1999). Accordingly, Plaintiff is directed not to include claims
against Doe Defendants (or “unknown parties”) in his amended complaint. Plaintiff may
add named Defendants. If Plaintiff files the amended complaint with Doe Defendants, his
claims against them shall be dismissed without prejudice. Should Plaintiff later learn Doe
Defendants’ identities through discovery, he may move to file an amended complaint to
add them as named defendants. Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98
(9th Cir. 2003).
3.

Proper Joinder of Multiple Claims And Defendants
Federal Rule of Civil Procedure 18(a) provides: “A party asserting a claim to relief

as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as
independent or as alternate claims, as many claims, legal, equitable, or maritime, as the
party has against an opposing party. Fed.R.Civ.P. 18(a). Thus, multiple claims against a
single party are fine, but Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). In
other words, unrelated claims against different defendants belong in different suits. Id.
The fact that claims are premised on the same type of constitutional violation(s)

MEMORANDUM DECISION AND ORDER - 6

(e.g. Eighth Amendment) against multiple defendants does not make them factually
related. Claims are related when they are based on the same precipitating event.
Unrelated claims involving multiple defendants belong in different suits. Id.
Rule 18(a) allows multiple claims against a single party. However, naming
multiple defendants is limited by the requirement of Federal Rule of Civil Procedure
20(a)(2) that the right to relief arise out of common events and contain common questions
of law or fact.
The Court’s Initial Review Order allowed Plaintiff’s retaliation claim
and Plaintiff’s religious exercise claims. (Dkt. 12.) The precipitating events for these
claims were Plaintiff’s whistleblowing activities concerning the “wood fund” and the
destruction of the religious sweat lodge. Plaintiff now seeks to add additional claims of
retaliation, excessive force, abusive search, access to court and deliberate indifference.
While Plaintiffs claims concerning the search are arguably related to Plaintiff’s
whistleblowing activities, the access to court and deliberate indifference claims are
seemingly based on unrelated events.
The Court will grant Plaintiff an opportunity to file an amended complaint as to the
named Defendants, as set forth below. However, in order to state a cognizable claim,
Plaintiff must either plead facts demonstrating how his claims are related or he must file a
separate complaint for each unrelated claim against different defendants. If Plaintiff files
an amended complaint that does not comply with Rules 18(a) and 20(a)(2), all unrelated

MEMORANDUM DECISION AND ORDER - 7

claims and defendants will be subject to dismissal.
4.

Retaliation Claim
Plaintiff seeks to amend his retaliation claim to include the allegation that he was

subject to an “overly aggressive search”, which resulted in “painful and permanent injury
to Plaintiff’s testicles.” (Dkt. 24 at 1-2.) Plaintiff claims the search and injury occurred
because of his complaints regarding the misuse of the wood fund and the destruction of
the sweat lodge. Defendants argue that this allegation was dealt with in the Initial
Review Order and that Plaintiff’s claim still does not provide any facts to suggest that the
search was retaliation because of Plaintiff’s whistle blowing activities. (Dkt. 25 at 2.)
Defendants further argue that Plaintiff’s claim does not comply with Federal Rule of Civil
Procedure 8. (Id.) While the Court essentially agrees with Defendants, the Court will
allow Plaintiff the opportunity to set forth an amend complaint.
To state a claim of unconstitutional retaliation under the First and Fourteenth
Amendments, a prisoner must allege that a state actor took some adverse action against
him because of his protected conduct and that the action did not reasonably advance a
legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005).
Furthermore, under Section 1983, plaintiff must demonstrate that each named
defendant participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002). “Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.”

MEMORANDUM DECISION AND ORDER - 8

Iqbal, 556 U.S. at 676. In other words, vague and conclusory allegations of official
participation in civil rights violations are not sufficient. Ivey v. Board of Regents of Univ.
of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Rather, plaintiff must demonstrate that each
defendant, through his or her own individual actions, violated plaintiff’s constitutional
rights. Iqbal, 556 U.S. at 676-677.
In this case, Plaintiff provides little factual detail regarding the “overly aggressive
search.” Plaintiff does not describe the specific events immediately leading up to the
search, or whether Plaintiff was perceived to be a threat to the Defendants or to prison
discipline. It is not clear what amount and duration of force was applied, how the force
was applied, how Plaintiff responded to it or why Plaintiff concludes that it was the result
of his whistleblowing activities. Furthermore, Plaintiff does not allege facts
demonstrating what involvement, if any, each Defendant had in the alleged rights
violation.
The Court will grant Plaintiff an opportunity to amend his retaliation claim to
include the allegation that he was subject to an “overly aggressive search.” However, in
order to state a cognizable claim, Plaintiff must provide facts that address the above
deficiencies and support the allegation that each named Defendant caused or personally
participated in causing the alleged deprivation of his constitutional rights.
5.

Excessive Force Claim
Plaintiff seeks to amend his complaint to include a claim of excessive force under

MEMORANDUM DECISION AND ORDER - 9

the Eighth Amendment. As set forth above, Plaintiff alleges that he was subjected to an
“overly aggressive search” which resulted in “painful and permanent injury to the
Plaintiff’s testicles.” (Dkt. 24 at 1-2.) Defendants argue that Plaintiff’s claim does not
meet the minimum pleading requirements of Rule 8. (Dkt. 25 at 3.) In addition,
Defendants argue that even if a plausible claim could be made, it should be the subject of
its own separate lawsuit. (Id.) The Court will allow Plaintiff the opportunity to amend
his complaint to include a claim of excessive force.
The Cruel and Unusual Punishment Clause of the Eight Amendment protects
prisoners from the use of excessive physical force. Hudson v. McMillian, 503 U.S. 1, 8-9
(1992). To state an Eighth Amendment claim, a plaintiff must allege that the use of force
was an “unnecessary and wanton infliction of pain.” Jeffers v. Gomez, 267 F.3d 895, 910
(9th Cir.2001). The malicious and sadistic use of force to cause harm always violates
contemporary standards of decency, regardless of whether or not significant injury is
evident. Hudson, 503 U.S. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9thCir.
2002) (Eighth Amendment excessive force standard examines de minimis uses of force,
not de minimis injuries). However, not “every malevolent touch by a prison guard gives
rise to a federal cause of action.” Hudson, 503 U.S. at 9.
Whether force used by prison officials was excessive is determined by inquiring if
the “force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Id. at 6-7. The Court must look at the need

MEMORANDUM DECISION AND ORDER - 10

for application of force; the relationship between that need and the amount of force
applied; the extent of the injury inflicted; the extent of the threat to the safety of staff and
inmates as reasonably perceived by prison officials; and any efforts made to temper the
severity of the response. Whitley v. Albers, 475 U.S. 312, 318 (1976). The absence of
significant injury alone is not dispositive of a claim of excessive force.
As the Court noted above, Plaintiff provides little factual detail regarding the
specific events immediately leading up to the use of force and the nature in which it was
used. It is not clear whether Plaintiff was perceived to be a threat to the safety of
Defendants or to prison discipline, what amount and duration of force was applied, how
the force was applied, or how Plaintiff responded to it.
The Court will grant Plaintiff an opportunity to add this claim. However, in order
to state a cognizable claim for excessive force in an amended complaint, Plaintiff must
provide truthful facts that address the above deficiencies and support the allegation that
each named Defendant caused or personally participated in causing the alleged
deprivation of his constitutional rights.
6.

Abusive Search
Plaintiff apparently seeks to amend his complaint to include a claim for an abusive

search under the Fourth Amendment. (Dkt. 24 at 2.) The Court will allow Plaintiff the
opportunity to amend his complaint to add this claim.
The Fourth Amendment protects prisoners from unreasonable searches and

MEMORANDUM DECISION AND ORDER - 11

seizures. Strip searches/body cavity searches that are excessive, vindictive, harassing, or
unrelated to any legitimate penological interest are not reasonable. Michenfelder v.
Sumner, 860 F.2d 328, 332 (9th Cir. 1988). Neither the United States Supreme Court nor
the Ninth Circuit has yet held that prisoners retain no privacy rights under the Fourth
Amendment. Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“Fourth Amendment
proscription against unreasonable searches does not apply within the confines of the
prison cell.”); Bell v. Wolfish, 441 U.S. 520, 558 (1979) (“assuming [without deciding]
that inmates, both convicted prisoners and pretrial detainees, retain some Fourth
Amendment rights upon commitment to a corrections facility . . . .”); Somers v. Thurman,
109 F.3d 614 (9th Cir. 1997). The Ninth Circuit has found that prisoners retain a limited
right to bodily privacy. Michenfelder, 860 F.2d at 333.
In analyzing whether searches of prisoners violate the Fourth Amendment, the
Supreme Court set forth a balancing test in Bell, 441 U.S. at 559, 99 S.Ct. 1861. The Bell
court provided:
The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application. In each case it requires a balancing of the
need for the particular search against the invasion of personal rights that the search
entails. Courts must consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and the place in which it is
conducted.
Id. at 559, 99 S.Ct. 1861.
While Plaintiff sets forth the Bell Test in his briefing, he provides very little detail
regarding the allegedly abusive search. The Court will grant Plaintiff an opportunity to
MEMORANDUM DECISION AND ORDER - 12

amend his complaint to include an abusive search claim under the Fourth Amendment.
However, Plaintiff must provide facts which demonstrate that indeed the search was
unreasonable. Similar to the claim for retaliation and excessive force, Plaintiff must set
forth specifically the events leading up to the search, the manner in which it was
conducted, why it was conducted and where it was conducted. Plaintiff bears the burden
to demonstrate that the invasion of his personal rights outweighed any need for the
search. In addition, Plaintiff must support the allegation that each named Defendant
caused or personally participated in causing the alleged deprivation of his constitutional
rights.
7.

Access To Courts
Plaintiff seeks to amend his complaint to add a claim for access to courts. Plaintiff

alleges that certain “known and unknown parties violated his right to access the courts, by
denying him use of various needed resources, to properly present a viable claim regarding
the untreated back injury.” (Dkt. 24 at 1.) Plaintiff also agues that these individuals
“made a number of faulty assessments” and as a result “the U.S. District Court dismissed
said claims.” (Dkt. 24 at 1, 3.) Defendants make the same arguments regarding unknown
parties and complying with Rule 8. (Dkt. 25 at 3.) The Court will allow Plaintiff to add
the claim.
Prisoners have a constitutional right of access to courts guaranteed by the
Fourteenth Amendment. Vandelft v. Moses, 31 F.3d 794, 796 (9th Cir. 1994). Included

MEMORANDUM DECISION AND ORDER - 13

within that right of access to courts is a prisoner’s right of access to adequate law libraries
or legal assistance from trained individuals. Id. “[T]he fundamental constitutional right
of access to the courts requires prison authorities to assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Id., (quoting Bounds v. Smith, 430
U.S. 817, 821 (1977)). Furthermore, there is no established minimum requirement for
satisfying the access requirement; rather, “a reviewing court should focus on whether the
individual plaintiff before it has been denied meaningful access.” Id., (quoting Sands v.
Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989)).
The Ninth Circuit has established a two-step analysis to determine whether a right
of access claim has merit. First, the court must decide “whether the claimant alleges a
denial of adequate law libraries or adequate assistance from persons trained in the law.”
Id. at 1171. Second, if the claim does not involve either of the two Bounds “core
requirements,” the court must determine whether the plaintiff has alleged an actual injury
to court access. Id. “Actual injury” is defined as a “specific instance in which an inmate
was actually denied access to the courts.” Id. There is no actual injury requirement if
either of the core requirements under Bounds is involved, i.e., adequacy of either the law
library or legal assistance. Id. Therefore, in order to state a claim for relief, Plaintiff
must establish either that: (1) he was denied access to an adequate law library or trained
legal assistance; or, (2) he was actually denied access to the courts.

MEMORANDUM DECISION AND ORDER - 14

The Court will grant Plaintiff an opportunity to add this claim. However, in order
to state a cognizable claim for access to the courts in an amended complaint, Plaintiff
must provide truthful facts that address specifically what resources Plaintiff was denied
and what “faulty assessments” were made. In addition, Plaintiff must support the
allegation that each named Defendant caused or personally participated in causing the
alleged deprivation of his constitutional rights.
In addition, as set forth above, this claim must satisfy Rules 18 and 20.
8.

Deliberate Indifference
Plaintiff seeks to amend his complaint to add a claim for deliberate indifference.

Plaintiff alleges that “known and unknown parties” acted with deliberate indifference in
treating him for a “workers comp back injury.” (Dkt. 24 at 4-5.) Defendants once again
argue that Plaintiff’s claim does not comply with Rule 8 and that Plaintiff has made no
showing specific to the known or unknown parties. (Dkt. 25 at 4.) Defendants further
argue that the doctrine of res judicata renders the proposed amendment futile, because
Plaintiff recently litigated the identical claim in state court and lost. (Id.) The Court will
allow the Plaintiff to add the claim.
A violation of the Eighth Amendment occurs when prison officials are deliberately
indifferent to a prisoner’s medical needs. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th
Cir. 2004). In the Ninth Circuit, the test for deliberate indifference consists of two parts.
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). First, the plaintiff must show a

MEMORANDUM DECISION AND ORDER - 15

“serious medical need” by demonstrating that “failure to treat a prisoner’s condition could
result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Id.,
(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Second, the plaintiff must show the
defendant’s response to the need was deliberately indifferent. Id., at 1096. The second
prong - defendant’s response to the need was deliberately indifferent- is satisfied by
showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical
need and (b) harm caused by the in indifference. Id. Indifference “may appear when
prison officials deny, delay or intentionally interfere with medical treatment, or it may be
shown by the way in which prison physicians provide medical care.” Id. Yet, an
“inadvertent [or negligent] failure to provide medical care” does not state a claim under §
1983. Id. “If the harm is an ‘isolated exception’ to the defendant’s ‘overall treatment of
the prisoner [it] ordinarily militates against a finding of deliberate indifference.” Id.,
(citing McGuckin v. Smith, 974 F.2d 1050, 1060 (9thCir. 1991)).
Plaintiff alleges that he suffered a serious back injury, which requires surgery and
physical therapy. (Dkt. 24 at 4.) He claims CMS medical professionals have purposely
delayed in providing him needed treatments and have “unscrupulously change[d] the
diagnosis, to avoid further expenses,” because Plaintiff is apparently close to his release
date. (Id.) He argues that the delays in his treatment have caused disintegrated discs and
vertebra. (Id., at 5.) The Court will allow Plaintiff the opportunity to add this claim.
However, the claim must satisfy Rules 18 and 20.

MEMORANDUM DECISION AND ORDER - 16

As for Defendants’ argument that res judicata is applicable, the Court does not
currently have enough information before it to make such a determination. Res judicata,
or claim preclusion, prohibits lawsuits on “any claims that were raised or could have been
raised” in a prior action. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9 th Cir. 2002). Res
judicata applies when there is: “(1) an identity of claims; (2) a final judgment on the
merits; and (3) identity or privity between parties.” Id.

In other words, the “doctrine of

res judicata bars a party from bringing a claim if a court of competent jurisdiction has
rendered a final judgment on the merits of the claim in a previous action involving the
same parties or their privies.” Siegel v. Federal Home Loan Mortg. Corp., 143 F.3d 525,
528 (9th Cir. 1998). The Court will need more information regarding the claims and
parties, before it can make this determination.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Notice and Request for Leave to Amend (Dkt. 24), construed as a
motion for leave to amend, is GRANTED. Plaintiff Robert McCormack
may file a “First Amended Complaint” within 30 days of this Order,
consistent with the instructions contained herein.

MEMORANDUM DECISION AND ORDER - 17

2.

The Court’s previous Scheduling Order (Dkt. 22) shall be amended to
extend the discovery deadline until June 21, 2013. The dispositive motion
deadline shall be reset to July 26, 2013.
DATED: February 26, 2013

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER - 18