Joshua v. Dzurenda et al

Filing 58

ORDER. IT IS ORDERED that:1. The 35 Motion to Amend is GRANTED.2. The Clerk of Court is kindly directed to detach and file plaintiff's proposed Second Amended Complaint (ECF No. 35 -1) on the docket. 3. The 47 Motion for Leave t o File Excess Pages is GRANTED. 4. The Office of the Attorney General is directed to clarify whether it is accepting service on behalf of defendants Dahiran and Banclari, and if so, file a formal Acceptance of Service. Signed by Magistrate Judge Maximiliano D. Couvillier, III on 11/25/2024. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - ALZ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Karl Joshua,
Plaintiff,

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vs.

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Ronald Oliver, et al.,

ORDER GRANTING MOTION TO AMEND

Defendants.

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2:23-cv-01087-MMD-MDC

Pending before the Court is pro se plaintiff Karl Joshua’s Motion for Leave to File Second

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Amended Complaint (“Motion to Amend”) (ECF No. 35) and Motion for Leave to File Excess Pages

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(ECF No. 47). For the reasons stated below, the Court GRANTS the Motion to Amend.
DISCUSSION

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I. BACKGROUND

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This is a civil action arising under 42 U.S.C. § 1983. See ECF No. 6. Plaintiff initially filed this

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action on July 13, 2023. Plaintiff filed a First Amended Complaint before the Court issued a screening

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order on his original complaint. ECF No. 6. The Court screened plaintiff’s First Amended Complaint

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and found plaintiff plausibly pled First, Fourth and Eighth Amendment violation claims. See ECF Nos.

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6, 13. Plaintiff was allowed to proceed on his First Amendment retaliation claim, a Fourth Amendment

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unreasonable strip search claim, Eighth Amendment excessive force claims, and Eighth Amendment

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medical indifference claims. ECF Nos. 6, 13. More specifically, the screening order stated:

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It is [] ordered that the First Amendment retaliation claim may proceed against
J. Pena, Portilla, Leon Dahiran, Rodney Jefferson, Thurston Moore, R. Cazares, Ronald
Oliver, and James Scalley.
It is further ordered that the Fourth Amendment harassing strip-search claim
may proceed against Portilla, Rodney Jefferson, Thurston Moore, Ronald Oliver, and
James Scalley.
It is further ordered that the Eighth Amendment excessive-force claim regarding
the October 18, 2022, incident may proceed against R. Cazares, Ronald Oliver, and James
Scalley.

It is further ordered that the Eighth Amendment excessive-force claim regarding
the undated gassing incident may proceed against R. Cazares, Banclari, Finley, Ronald
Oliver, and James Scalley.
[…]
It is further ordered that the Eighth Amendment medical-indifference claim
regarding chronic conditions may proceed against J. Pena, Portilla, Sanchez, Ronald
Oliver, and James Scalley. This claim may also proceed against the John Doe officer and
medical staff when Joshua learns their true names and moves to substitute them as
defendants in this action.
It is further ordered that the Eighth Amendment medical-indifference claim
regarding injuries may proceed against Cazares and Finley. This claim may also proceed
against medical staff when Joshua learns their true names and moves to substitute them as
defendants in this action.

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ECF No. 13 at 21-22.
The Court dismissed some of plaintiff’s claims with leave to amend and gave plaintiff 30-days to

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file an amended complaint. ECF No. 21-23. The Court also dismissed a few defendants but did so

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without prejudice. See ECF No. 13 at 22 (“…James Dzurenda, Patrick Moreda, Jay Barth, Benjamin

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Estill, Garcia, Gomez, Nurse Jamie, and Rodriguez are dismissed without prejudice from this action.”).

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Plaintiff did not file an amended complaint and the Court allowed plaintiff to proceed on the above

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claims. Thereafter, the case was stayed pending the Early Mediation Conference. ECF No. 15. The

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Court lifted the stay after parties failed to settle and the case proceeded on normal litigation track. See

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ECF Nos. 19, 21. On August 20, 2024, the Court entered a Discovery Scheduling Order. See ECF No.

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29.
Defendants filed their Answer to the First Amended Complaint on August 16, 2024. ECF No. 28.

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Plaintiff now seeks to file a Second Amended Complaint. ECF No. 35. Plaintiff seeks to add over 20

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new defendants and at least three new causes of action. Id. In response to plaintiff’s Motion (ECF No,

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35), defendants assert that it is the Court’s obligation to screen plaintiff’s proposed Second Amended

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Complaint. ECF No. 48. Defendants’ position is not reasonable and, more importantly, defendants failed

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to meet their burden under LR 7-2(d), FRCP 15, and Desertrain v. City of Los Angeles, 754 F.3d 1147,

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1154 (9th Cir. 2014) and its progeny.

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//

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II. LEGAL STANDARD

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Pursuant to Rule 15 of the Federal Rules of Civil Procedure, once a party has amended its

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pleadings as a matter of course, subsequent amendments are only permitted “with the opposing party’s

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written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 provides that “[t]he court should

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freely give leave when justice so requires.” Id. Generally, the Ninth Circuit has held that Rule 15(a)

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should be “applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,

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1051 (9th Cir. 2003). “Five factors are taken into account to assess the propriety of a motion for leave to

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amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the

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plaintiff has previously amended the complaint.” Desertrain,, 754 F.3d at 1154 (citing Johnson v.

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Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Eminence Capital, LLC, 316 F.3d at 1052

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(“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

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deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of

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allowance of the amendment, futility of amendment, etc.”) (citing Foman v. Davis, 371 U.S. 178, 182

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(1962). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15—to

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facilitate decision on the merits, rather than on the pleadings or technicalities.” Roth v. Garcia Marquez,

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942 F.2d 617, 628 (9th Cir. 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)).

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Ultimately, there is considerable deference to amendment and the analysis “should be performed with all

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inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir.

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1999).

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III. ANALYSIS

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A. The PLRA Only Mandates Early Judicial Screening
As stated above, plaintiff seeks to include additional defendants and claims in his proposed

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Second Amended Complaint. Defendants do not actually oppose the motion, addressing the standards

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under Rule 15 or Desertrain, 754 F.3d at 1154. See e.g., ECF No. 48 at 12:14-18. Instead, defendants’

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attempt to shift the burden upon the Court, arguing that the Court is “obligated” to screen plaintiff’s

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proposed Second Amended Complaint per the Prison Litigation Reform Act. See generally ECF No. 48.

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Defendants’ argument and position is not reasonable and falls within the failure to respond standard

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under LR 7-2(d). Foremost, defendants’ argument is contrary to the numerous authorities from this 1

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District which hold that the Prison Litigation Reform Act (“PLRA”) does not obligate the Court to

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screen every proposed amended complaint. See Anderson v. Nevada, 2023 U.S. Dist. LEXIS 141077, *3

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(D. Nev. March 8, 2023) (“However, screening is not required, either explicitly or implicitly, [] every

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time a plaintiff seeks to amend the complaint.”) (internal quotations and citations omitted); Taylor v.

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Nevada, 2023 U.S Dist. LEXIS 202703 (D. Nev. Nov. 9, 2023); Rodriguez v. Dzurenda, 2019 U.S. Dist.

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LEXIS 251442, *2 (D. Nev. June 14, 2019) (“At this stage of the case, the court will not screen

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plaintiff's amended complaint, nor is it mandated to do so.”); Olausen v. Murguia, 2014 U.S. Dist.

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LEXIS 159941, *6 (D. Nev. Nov. 12, 2014) (“Just because a court has authority to dismiss the case at

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any time does not mean it is compelled to re-screen every proposed amended complaint filed after the

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initial pre-answer screening.”); Caballero v. Arans, 2020 U.S. Dist. LEXIS 113850, *5 (D. Nev. June

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29, 2020) (“The screening provision does not require a court, either explicitly or implicitly, to screen

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every time a plaintiff seeks to amend the complaint.”). Caballero stated further that 28 USCS §

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1915A(a) "could not be clearer as to the timing of the mandatory screening. A court must screen 'before

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docketing, if feasible or, in any event, as soon as practicable after docketing.'" Id., 2020 U.S. Dist.

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LEXIS 113850, at *5 (emphasis added). This case is long past the docketing stage, and defendants have

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previously answered plaintiff’s prior complaint and a discovery scheduling order has been entered. See

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ECF Nos. 28 and 29.

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To be sure, defendants do not cite to any District of Nevada authorities that supports their argument that the PLRA
mandates screening every proposed amended complaint. As to the authorities defendants cited, they are unclear whether the
rescreening occurred during the pre-answer stage or after defendants have answered. In any event, screening an amended
complaint after a court gives leave to amend is different from the scenario where defendants have appeared, answered the
original complaint, and thereafter the plaintiff seeks further amendment via a motion to amend. See Caballero, 2020 U.S.
Dist. LEXIS 113850, at *7.

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Indeed, the Courts in this district have denied similar motions to screen filed by defense counsel

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over the past several years.
In Anderson v. Nevada 2, the defendants (represented by the Nevada Office of the Attorney

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General) (“OAG”) filed a similar Motion for Screening (ECF No. 51). Case No. 2:21-cv-00514-APG-

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EJY, 2023 U.S. Dist. LEXIS 141077 (D. Nev. March 8, 2023). Defendants in Anderson (who had not

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filed an answer to the original complaint as the defendants here) similarly argued that PLRA mandated

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screening. The Court disagreed, holding that the PLRA does not mandate screening every time plaintiff

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files an Amended Complaint. Id., 2023 U.S. Dist. LEXIS 141077 at *4 (“screening is not required,

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‘either explicitly or implicitly, ... every time a plaintiff seeks to amend the complaint.’”).

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The OAG also raised similar arguments in Olausen v. Murguia, when they objected to the
Magistrate Judge’s Report and Recommendation that rejected their position that the Court is obligated to
screen every proposed amended complaint under the PLRA. Id., Case No. 2:13-cv-00388-MMD-VPC
at ECF No. 91. The District Judge denied defendants’ objection and (again) confirmed this District’s
position that Courts are not obligated to screen every proposed amended complaint. The District Judge
clearly and unambiguous stated:
Defendants cite to three district court cases from other districts, two of
which are unpublished…to show that these courts confirm that, pursuant to
28 U.S.C. § 1915A, an amended complaint must undergo judicial
screening…. The Court respectfully disagrees with the court in Defendants'
cited decision of Zimmerman v. Hoard, 5 F. Supp. 2d 633, 635 (N.D. Ind.
1998), where the court stated that it was required to screen prisoners'
proposed amended complaints. To clarify, courts in this district screen
complaints and amended complaints at the pre-answer stage. In cases
where the court dismisses the initial complaint with leave to amend, the
court would then screen the proposed amended complaint to determine
what claims may proceed and whether a defendant is compelled to respond.
This practice falls within the PLRA's mandate for ‘early judicial
screening’…. To be sure, this Court has screened subsequent proposed
amended complaints after defendants have made an appearance, but the

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See United States District Court, District of Nevada, Case No. 2:21-cv-00514-CDS-EJY

decision to engage in post-answer court screening is made on a case-bycase basis. Thus, the fact that some of Defendants' cited decisions refer
to screening of an amended complaint does not necessarily show that
the screening court viewed its duty to screen as mandatory and not
discretionary. Nor do those decisions require this Court to screen
Plaintiff's proposed amended complaint.
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Defendants also rely on 42 U.S.C. § 1997e(c)(1) to support their argument
that post-answer screening is mandatory in this case.…However, §
1997e(c)(1) does not address — let alone compel — post-answer screening.
It gives a court the authority to dismiss an action sua sponte; it does not
mandate that a court re-screen in response to a motion to amend filed postanswer and mid-litigation.

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Olausen, 2014 U.S. Dist. LEXIS 159941, at *13-15 (D. Nev. Nov. 12, 2014) (emphasis added).
In Taylor v. Nevada 3, defendants (again represented by the OAG) filed a Motion to Strike (ECF

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No. 29) defendants’ amended complaint. Id., Case No., 2:21-cv-02011-RFB-VCF, 2023 U.S Dist.

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LEXIS 202703 (D. Nev. Nov. 9, 2023). Like the defendants here, the defendants in Taylor argued the

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Court “must” screen plaintiff’s subsequent pleadings under the PLRA. Compare Defs.’ Motion to Strike

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at ECF No. 29, pp. 3-5 in Case No., 2:21-cv-02011-RFB-VCF (Taylor) with Defs.’ Opposition in this

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matter at ECF No. 48, pp. 3-5. The Taylor Court (again) rejected the argument that the Court was

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required to screen subsequent pleadings and instructed defense counsel to file a motion opposing

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amendment.

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I also caution defendants' counsel, however, that if plaintiff files a motion
for leave to amend, they must also respond to the motion in the ordinary
course. Defendants' counsel argues in its motion to strike that the court
must screen amended complaints from prisoners. That is true of prisoner
cases in the early stages of litigation, but the court is not obligated to screen
the complaint at this late stage in the case.

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Taylor, 2023 U.S. Dist. LEXIS 202703, at *2. This case is also past the early stages, particularly since

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defendants answered plaintiff’s prior complaint and a discovery scheduling order has been entered. See

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ECF Nos. 28 and 29.

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See United States District Court, District of Nevada, Case No. 2:21-cv-02011-RFB-MDC

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Notwithstanding this District Court’s numerous, previous rejections of the defense argument that

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the Court is “obligated” to screen subsequent complaints under the PLRA, and particularly Taylor’s

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rejection, the defendants here inexplicably restate, almost verbatim the very same arguments that Taylor

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clearly rejected. Compare Defs.’ Motion to Strike at ECF No. 29, pp. 3-5 in Case No., 2:21-cv-02011-

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RFB-VCF (Taylor) with Defs.’ Opposition in this matter at ECF No. 48, pp. 3-5:

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Defs.’ Motion to Strike, ECF No.29, in Taylor

Defs.’ Opposition in this matter at ECF No.48

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Defendants’ continued reliance on Espinosa v. Stogner, 2017 U.S. Dist. LEXIS 199443 (D. Nev.

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Dec. 4, 2017) for the proposition that a court is required to screen an amended complaint is also

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unreasonable. Espinosa addressed screening an amended complaint to determine whether such

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amendment cured the deficiencies of the original complaint identified in the original screening order.

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Id., 2017 U.S. Dist. LEXIS 199443, at *2 (“Upon screening, the Court…dismissed the federal claims

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with leave to amend…. An inspection of the FAC [amended complaint] indicates that Plaintiff did not

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cure the deficiencies identified in the screening order.”). Indeed, the Espinosa decision identifies such

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narrow circumstances:

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The remaining question is whether a district court is required to screen
amended complaints…under §§ 1915 and/or 1915A, either generally, or at
least where amendment has been required due to a deficiency noted
during screening of the original complaint, as here.
Id., 2017 U.S. Dist. LEXIS 199443, at *3-4 (emphasis added).
This distinction has been previously recognized by other District decisions. In Peck v. Nevada,

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the Magistrate Judge noted that “[t]he Espinosa court held that the Court must screen an amended

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complaint after the court required the plaintiff to amend due to a deficiency noted during screening of

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the original complaint.” Id., 2:18-cv-00237-APG-VCF, 2020 U.S. Dist. LEXIS 167960, at *4 (D. Nev.

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Sep. 14, 2020). In Caballero, the Magistrate Judge similar observed Espinoza’s narrow operation:
Next, Mitchell discusses Espinosa v. Stogner, a case in which the District
Court held that screening was required in a case where amendment has been
required due to a deficiency noted during screening of the original
complaint.... Espinosa is distinguishable from the present case, as Caballero
was not explicitly granted leave to amend in the original screening order.

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Caballero, 2020 U.S. Dist. LEXIS 113850, at *5-6. See also, e.g., Olausen, 2014 U.S. Dist. LEXIS

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159941, at *13 (“In cases where the court dismisses the initial complaint with leave to amend, the court

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would then screen the proposed amended complaint to determine what claims may proceed and whether

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a defendant is compelled to respond.”).

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As has been previously summarized, “[c]onstruing the PLRA to require court screening of every

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amended complaint, regardless of how far a case has progressed would increase, not reduce, the burden

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on federal courts.” Rodriguez, 2019 U.S. Dist. LEXIS 251442, at *3 (citing Olausen, 2014 U.S. Dist.

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LEXIS 159941, at 7).

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It is not reasonable to continue to argue to our District Courts that they are obligated to screen

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every subsequent complaint under the PLRA. To the extent that it may be occurring, defense counsel

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must stop filing recycled briefs or portions thereof which repeat such rejected arguments.

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B. Defendants Failed To Show That This Proposed Complaint Warrants Screening
Defendants failed to show the Court should exercise its discretion to screen plaintiffs’ amended

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complaint. The decision to screen post-answer complaints is discretionary, on a case-by-case basis.

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See Olausen, 2014 U.S. Dist. LEXIS 159941, at *13-14 (“To be sure, this court has screened subsequent

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proposed amended complaints after defendants have made an appearance, but this decision to engage in

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post-answer screening is made on a case-by-case basis.”); see also Caballero, 2020 U.S. Dist. LEXIS

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113850, at *6-7 (To clarify, courts in this district screen complaints and amended complaints at the pre-

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answer stage….The decision to engage in post-answer screening is made on a case-by-case basis.”).

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Defendants did not address’ the Court’s discretion and did not persuade the Court to exercise its

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discretion to screen plaintiff’s proposed amended complaint. Nor will the Court do so sua sponte.

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C. Defendants Failed To Comply With LR 7-2(d)

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LR 7-2(d) provide that “[t]he failure of an opposing party to file points and authorities in

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response to any motion…constitutes a consent to the granting of the motion.” Id. Defendants’

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opposition (ECF No. 48) falls within LR 7-2(d) because defendants attempted to shift their burden

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opposing plaintiff’s motion and proposed amendment by arguing the Court is obligated to screen

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plaintiff’s proposed amended complaint, e.g, “Joshua’s second amended complaint is a prime example

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of why the Court must screen all amended complaints by inmates…..Defendants respectfully request

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that this court screen this proposed second amended complaint.” See ECF No. 48 at 12-14-18. As

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discussed above, the Court is not obligated to screen plaintiff’s proposed amended complaint and

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defendants failed to demonstrate why this matter should be one of the “case-by-case” situations where

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the Court should exercise its discretion to screen.
If defendants intend to file a motion to dismiss in response to plaintiff’s amended complaint, they

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must do so without relying on the Court to screen the complaint for them at this post-answer stage.

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IV. NOTICE OF APPEARANCE

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The Court notes that there is no Acceptance of Service by the Office of the Attorney General for

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defendants Leon Dahiran and Gerareo Banclari. On August 16, 2024, the Office of the Attorney General

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filed an Acceptance of Service for several defendants. ECF No. 25. However, the Office of the Attorney

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General did not accept service on behalf of defendants Dahiran and Banclari. Id. Defendant’s Answer to

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the Amended Complaint, did not include defendants Dahiran and Banclari. See ECF No. 28. However,

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in responding to plaintiff’s Motion to Extend Time and several other motions, the Office of the Attorney

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General responded on behalf of defendants Dahiran and Banclari. See e.g., ECF Nos. 37, 38, 39. It is

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unclear whether the Office of the Attorney General intends to accept service on behalf of defendants

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Dahiran and Banclari. Therefore, the Court will Order the Office of the Attorney General to clarify the

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confusion.

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V. CONCLUSION

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The Court is not obligated to screen plaintiff’s Second Amended Complaint and declines its

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discretion to do so. Because defendants have failed to substantively respond to plaintiff’s Motion to

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Amend, the Court finds good cause to grant the Motion.

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ACCORDINGLY,

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IT IS ORDERED that:

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1. The Motion to Amend (ECF No. 35) is GRANTED.

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2. The Clerk of Court is kindly directed to detach and file plaintiff’s proposed Second Amended

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Complaint (ECF No. 35-1) on the docket.

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3. The Motion for Leave to File Excess Pages (ECF No. 47) is GRANTED.

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4. The Office of the Attorney General is directed to clarify whether it is accepting service on

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behalf of defendants Dahiran and Banclari, and if so, file a formal Acceptance of Service.

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DATED this 25th of November 2024.
IT IS SO ORDERED.
_________________________
Hon. Maximiliano D. Couvillier III
United States Magistrate Judge

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NOTICE

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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985).

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This circuit has also held that (1) failure to file objections within the specified time and (2)

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failure to properly address and brief the objectionable issues waives the right to appeal the District

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Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d

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1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any

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change of address. The notification must include proof of service upon each opposing party’s attorney,

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or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may

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result in dismissal of the action.

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