Johnson v. Holms

Filing 113

ORDER denying 92 Motion for Leave to File Document; ORDER denying 96 Motion for Leave to File Document; Signed by Magistrate Judge Elayna J. Youchah on 7/15/2020. (Copies have been distributed pursuant to the NEF - JM)

Case 2:18-cv-00647-GMN-EJY Document 113 Filed 07/15/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ADRIAN JOHNSON,

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Case No. 2:18-cv-00647-GMN-EJY

Plaintiff,
ORDER
v.
SGT D. HOLMS, et al.,
Defendants.

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Before the Court is Plaintiff’s Motion Requesting Consent from LVMPD Defendants for

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Leave to File an Amended Complaint. ECF No. 92. Also before the Court is Plaintiff’s Motion For

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Leave to File an Amended Complaint. ECF No. 96. The Court has considered Plaintiff’s Motions

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and the LVMPD Defendants’ Oppositions thereto (ECF Nos. 102 and 108).

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Plaintiff’s Motion docketed as ECF No. 92, seeks agreement from the LVMPD Defendants

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to file an amended complaint. This request was rejected by Defendants in their Opposition. ECF

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No. 102 at 2. For this reason, ECF No. 92 is denied.

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Plaintiff’s Motion seeking leave of Court to file an amended complaint (ECF No. 96) is also

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denied. When considering whether to grant a motion seeking leave to amend a complaint, the Court

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may consider whether there is: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party;

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(4) futility in the amendment; and, (5) whether plaintiff has previously amended her

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complaint. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Here, the Court’s

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review of the docket shows this case commenced in April 2018, and that on March 3, 2020 the Court

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entered an Order stating, in pertinent part, that “no other amendments to Plaintiff’s Amended

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Complaint shall be permitted” after certain defendants were properly identified and served. ECF

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No. 50. Since that time Plaintiff filed numerous motions, and service on two additional defendants

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named by Plaintiff was effected. The record also shows that the discovery period has been extended

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twice with the present close of discovery, on September 18, 2020.

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Case 2:18-cv-00647-GMN-EJY Document 113 Filed 07/15/20 Page 2 of 3

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Importantly, neither of Plaintiff’s Motions seeking to file what would be a second amended

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complaint attached the proposed amended complaint to the filing. See ECF Nos. 92 and 96. This is

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a violation of United States District Court for the District of Nevada Local Rule (“LR”) and, this

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failure precludes the Court from considering whether Plaintiff’s new claims may be futile. See LR

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II 15-1; United States v 3 Parcels in La Plata County, 919 F.Supp 1449 (D. Nev. 1995). Moreover,

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permitting Plaintiff to file a second amended complaint to “include more and different facts” and

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add new legal claims, as stated on page 1 of ECF Nos. 92 and 96, will necessarily result in a

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substantial additional delay of this matter. Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522,

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532 (9th Cir. 2008). Plaintiff has had ample time to plead his claims, and has been given prior

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opportunities to amend. When the Court considers (1) Plaintiff has previously amended his

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Complaint, (2) that an amendment at this stage of proceedings would necessarily result in delay, and

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(3) Plaintiff’s failure to file a proposed amended complaint for court review, the Court concludes

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amendment will result in substantial delay, will prejudice Defendants by virtue of requiring, at a

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minimum, a third extension of discovery, and will lead to substantial inefficiency for the

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Court. While prejudice alone warrants denial of Plaintiff’s motion to amend (Wilcox v. First

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Interstate Bank of Or., 815 F.2d 522, 529 (9th Cir. 1987)), when all the factors are considered,

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amendment at this very late stage of proceedings is not justified.

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To the extent Plaintiff seeks a stenographer, a video surveillance expert, other unidentified

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expert witnesses, and a private investigator, these requests are denied. “The in forma pauperis

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statute, 28 U.S.C. § 1915, does not provide for the appointment of expert witnesses to aid prisoners

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or other indigent litigants.” Cepero v. Las Vegas Metropolitan Police Department, Case No. 2:11-

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cv-01421-JAD-NJK, 2019 WL 2616179, at *1 (D. Nev. June 26, 2019) (internal citations

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omitted). Instead, the district court has discretion to appoint an expert under Fed. R. of Evid. 706(a).

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Here, Plaintiff supports his request for a surveillance expert by stating that such an expert, along

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with other unidentified experts, may “testify regarding … knowledge of facts and circumstances

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surrounding the subject events as well as the allegations” in Plaintiff’s Amended Complaint. ECF

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Nos. 92 at 3 and 96 at 2. However, experts are not percipient witnesses who testify to facts, but are

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Case 2:18-cv-00647-GMN-EJY Document 113 Filed 07/15/20 Page 3 of 3

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witnesses presented to aid the trier of fact (whether judge or jury) with understanding an issue for

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which expert opinion will be useful. Fed. R. Evid. 706

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Finally, the expenditure of public funds on behalf of an indigent litigant is proper only when

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authorized by Congress. See United States v. MacCollom, 426 U.S. 317, 321 (1976); Tedder v. Odel,

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890 F.2d 210, 211 (9th Cir. 1989). With respect to a private investigator and stenographer, the Court

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is without legal authority to either to assist Plaintiff in this matter at no cost to the plaintiff. See,

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e.g., Wallace v. Bledsoe, Case No. 1:cv-10-0225, 2010 WL 1565571 (M.D. Pa. Mar. 16, 2010);

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Georgacarakos v. Wiley, Case No. 07-cv-01712-MSK-MEH, 2009 WL 440934, at *7 (D. Colo. Feb.

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23, 2009). These requests are therefore denied.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion Requesting Consent from LVMPD

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Defendants for Leave to File Amended Complaint (ECF No. 92) and Motion for Leave to File an

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Amended Complaint (ECF No. 96) are DENIED.

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Dated this 15th day of July, 2020.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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