Hernandez v. Howell et al

Filing 49

ORDER granting ECF No. 37 Motion for Leave to File Amended Complaint; directing Clerk to file ECF No. 37 -1 Amended Complaint which is operative in this case; directing AG to notify Court and Plaintiff within 21 days re service - answers du e within 60 days; granting ECF No. 45 Motion for Clarification; directing Clerk to send Plaintiff copies of docket sheet and ECF No. 44 Order on Motion for Appointment of Counsel (mailed 4/26/2021). Signed by Magistrate Judge Carla Baldwin on 4/26/2021. (Copies have been distributed pursuant to the NEF - KR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Plaintiff, 5 ORDER v. 6 7 Case No. 2:18-cv-01449-MMD-CLB ESTEBAN HERNANDEZ, HOWELL, et al., 8 Defendants. 9 10 Before the court is Plaintiff Esteban Hernandez’s (“Hernandez”) motion for leave 11 to file an amended complaint (ECF No. 37). 12 Dzurenda, and Jerry Howell (collectively referred to as “Defendants”), filed a limited 13 opposition to the motion (ECF No. 38), and Hernandez replied (ECF No. 48). Also 14 before the court is Hernandez’s motion for clarification (ECF No. 45). No response was 15 filed. 16 complaint (ECF No. 37) and the motion for clarification (ECF No. 45) are granted. 17 I. Defendants Romeo Aranas, James For the reasons discussed below, the motion for leave to file an amended FACTUAL BACKGROUND AND PROCEDURAL HISTORY 18 Hernandez is an inmate in the custody of the Nevada Department of Corrections 19 (“NDOC”). On August 3, 2018, Hernandez filed a civil rights complaint under 42 U.S.C. 20 § 1983 for events that occurred while Hernandez was incarcerated at the Southern 21 Desert Correctional Center (“SDCC”). (ECF No. 5.) On December 2, 2019, the District 22 Court entered a screening order on Hernandez’s complaint (ECF No. 4), allowing 23 Hernandez to proceed on an Eighth Amendment deliberate indifference to serious 24 medical needs claim against Defendants based on denial of treatment for hepatitis C 25 (“hep-C”). (See id. at 6.) The District Court dismissed, with prejudice, all claims against 26 Defendants NDOC and SDCC. 27 prejudice, an Eighth Amendment violation based on failure to inform Hernandez that he 28 had tested positive for hep-C and conduct follow-up testing. (Id.) (Id.) The District Court also dismissed, without 1 Around the same time Hernandez filed his complaint, many other individuals in 2 the custody of the NDOC filed similar actions alleging that NDOC’s policy for treating 3 hep-C amounts to deliberate indifference in violation of the Eighth Amendment. (See 4 ECF No. 6.) Thus, the court consolidated numerous actions, including Hernandez’s 5 case, for the purpose of conducting consolidated discovery. 6 Hernandez opted to be excluded from the class action, but his case remained stayed 7 through the pendency of the class action. (See ECF No. 10.) On September 2, 2020, 8 the stay was lifted in this case. (ECF No. 12.) (See ECF No. 7.) On December 11, 2020, Hernandez filed an amended complaint, without first 9 10 seeking leave of court. (ECF No. 32.) Thus, the court struck the improperly filed 11 complaint, with leave to re-file the amended complaint with an accompanying motion 12 requesting to do so as required in accordance with LR 15-1(a). (ECF No. 34.) On 13 December 21, 2020, Defendants filed their notice of acceptance of service for the 14 original complaint. (ECF No. 33.) Defendants filed their answer on December 31, 2020. 15 (ECF No. 35.) On January 12, 2021, Hernandez filed his motion for leave to file an 16 amended complaint (ECF No. 37), along with his proposed amended complaint (ECF 17 No. 37-1). Defendants filed a limited opposition to Hernandez’s motion for leave to 18 amend complaint (ECF No. 38) and Hernandez replied (ECF No. 48). 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure 15(a)(2) instructs that “[t]he court should freely 21 give leave [to amend a pleading] when justice so requires,” and there is a strong public 22 policy in favor of permitting amendment. Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 23 1999). The Ninth Circuit has made clear that Rule 15(a) is to be applied with “extreme 24 liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) 25 (per curiam). Under Rule 15(a), courts consider various factors, including: (1) bad faith; 26 (2) undue delay; (3) prejudice to the opposing party; (4) the futility of the amendment; 27 and (5) whether the plaintiff has previously amended his complaint. See id. at 1052. 28 The factors do not weigh equally; as the Ninth Circuit has explained, prejudice receives 2 1 greatest weight. See id. Defendants bear the burden of establishing prejudice, and 2 absent its presence or a “strong showing” under the other factors, there is a presumption 3 in favor of permitting amendment. Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 4 183, 186-87 (9th Cir. 1987)). 5 When considering prejudice, the court may weigh against the movant the 6 amended pleading’s great alteration of the litigation’s nature and its effect of requiring an 7 entirely new course of defense. Morongo Band of Mission Indians v. Rose, 893 F.2d 8 1074, 1079 (9th Cir. 1990). Alone, such alteration is not fatal. Id. In contrast, futility 9 “alone can justify the denial of a motion for leave to amend.” Nunes v. Ashcroft, 375 10 F.3d 805, 809 (9th Cir. 2003). Futility arises when the amendment is legally insufficient, 11 Miller v. Rykoff-Sexon, Inc., 845 F.3d 209, 214 (9th Cir. 1988), or “where the amended 12 complaint would . . . be subject to dismissal[,]” Steckman v. Hart Brewing, Inc., 143 F.3d 13 1293, 1298 (9th Cir. 1998). 14 III. DISCUSSION 15 A. Motion for Leave to File Amended Complaint 16 Hernandez moves to amend his complaint to add two additional defendants, Dr. 17 Henry Landsman and Medical Director Michael Minev, to his Eighth Amendment 18 deliberate indifference claim. 19 opposition, they first incorrectly state that Hernandez’s motion is improper because he 20 did not attach a proposed amended complaint. (ECF No. 38 at 1.) Defendants only 21 other argument is that amendment would be futile because Hernandez “has not alleged 22 facts sufficient to show that he was subjected to a deficient medical care sufficiently 23 severe to meet the objective prong of the Eighth Amendment” or “that Defendants were 24 aware of any such condition and were deliberately indifferent to his plight.” (Id. at 3-4.) 25 Further, Defendants request that if the court is inclined to grant the motion, that the 26 amended complaint be screened. (See ECF Nos. 37, 37-1.) In Defendants’ limited 27 Having reviewed Hernandez’s proposed amended pleading, the court finds that 28 the motion for leave to an amended complaint (ECF No. 37) should be granted, in its 3 1 entirety as it is not made in bad faith, would not cause undue delay to the litigation, is not 2 prejudicial to defendants, and it is Hernandez’s first amended pleading. See Eminence 3 Capital, LLC, 316 F.3d at 1052. Further, the court finds that Hernandez’s amended 4 complaint is not futile, because, liberally construed, he provides sufficient allegations that 5 Defendants Landman and Minev were personally involved or aware of his hep-C but 6 denied treatment in violation of the Eighth Amendment. (See ECF No. 37-1.)1 7 As to Defendants request that the amended complaint be screened, the court 8 declines to do so. 28 U.S.C. § 1915A requires screening of a prisoner’s complaint 9 “before docketing, if feasible or, in any event, as soon as practicable after docketing.” 28 10 U.S.C. § 1915A(a). The screening provision does not require a court, either explicitly or 11 implicitly, to screen every time a plaintiff seeks to amend the complaint. To be perfectly 12 clear, courts in this district screen complaints and amended complaints at the pre- 13 answer stage. In cases where the court dismisses the initial complaint with leave to 14 amend, the court would then screen the proposed amended complaint to determine what 15 claims may proceed and whether a defendant is compelled to respond. This practice 16 falls within the Prison Litigation Reform Act's mandate for “early judicial screening.” 17 Jones v. Bock, 549 U.S. 119, 223 (2007); see also Nordstrom v. Ryan, 762 F.3d 903, 18 906, 907 & n.1 (9th Cir. 2014) (characterizing screening under § 1915A as the “pre- 19 answer screening stage”). The decision to engage in post-answer court screening is 20 made on a case-by-case basis. The present case, which consists of a single deliberate 21 indifference count, with only a few defendants, is not the type of case that warrants post- 22 answer screening. Hernandez is simply seeking leave to add two new defendants to the 23 single claim and screening is unnecessary. 24 /// 25 /// 26 27 28 1 To the extent Hernandez is attempting to name NDOC and SDCC as defendants in his amended complaint, those defendants were already dismissed, with prejudice, as they are not proper defendants. (ECF No. 4.) 4 1 B. 2 Hernandez also filed a “Motion for Clarification”, which consists of a series of 3 questions Hernandez asks the court to address. (See ECF No. 45.) Defendants did not 4 respond. 5 addressed by the present order. As to Hernandez’s questions concerning appointment 6 of counsel and the docket sheet for this case, the Clerk of the Court shall send 7 Hernandez one copy of the docket sheet and one copy of the court=s order (ECF No. 8 44), denying his motion for appointment of counsel. 9 IV. 10 11 12 13 Motion for Clarification The court will grant the motion, as many of Hernandez’s questions are CONCLUSION Based upon the foregoing, IT IS ORDERED that Hernandez’s motion for leave to file an amended complaint (ECF No. 37) is GRANTED; IT IS FURTHER ORDERED that the Clerk of Court FILE the amended complaint (ECF No. 37-1), which is the operative complaint in this case; 14 IT IS FURTHER ORDERED that within twenty-one (21) days of the date of entry 15 of this order, the Attorney General’s Office shall file notice advising the court and 16 Hernandez of whether it can or cannot accept service on behalf of defendants 17 Landsman and/or Minev. 18 behalf of Landsman and/or Minev, the Office shall file, under seal, but shall not serve 19 Hernandez, the last known addresses of Landsman and/or Minev, if it has such 20 information. If the last known addresses of Landsman and/or Minev are a post office 21 box, the Attorney General's Office shall attempt to obtain and provide the last known 22 physical address. If service cannot be accepted for Landsman and/or Minev, Hernandez 23 shall file a motion requesting issuance of a summons, specifying a full name and 24 address for Landsman and/or Minev. If the Attorney General has not provided last- 25 known-address information, Hernandez shall provide the full name and address for 26 Landsman and/or Minev; If the Attorney General’s Office cannot accept service on 27 28 5 1 IT IS FURTHER ORDERED that Defendants shall file and serve an answer or 2 other response to the amended complaint within sixty (60) days from the date of this 3 order; 4 5 6 IT IS FURTHER ORDERED that Hernandez’s motion for clarification (ECF No. 45) is GRANTED; and, IT IS FURTHER ORDERED that the Clerk of Court shall SEND Hernandez a copy 7 of the docket sheet and a copy of the order on appointment of counsel (ECF No. 44). 8 April 26, 2021 DATED: ___________________ 9 10 __________________________________ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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