Olausen v. Murguia et al

Filing 108

ORDER granting 104 Motion to Amend; directing Clerk to file the amended complaint; permitting Counts I and II to proceed under the First and Fourteenth Amendments; dismissing Count IIs claim under 42 USC 1997d; dismissing with leave to amend Count III and giving Plaintiff 30 days to file an amended complaint. Signed by Magistrate Judge Valerie P. Cooke on 5/26/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,

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3:13-cv-00388-MMD-VPC

JOHN S. OLAUSEN,

v.

ORDER

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EUGENE MURGUIA, et al.,
Defendants.

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Before the court is plaintiff’s motion to file an amended complaint (#104). Defendants

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opposed (#106), and plaintiff replied (#107). For the reasons stated below, the court grants the

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motion to amend the complaint and also dismisses count III with leave to amend.

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I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

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John Steven Olausen (“plaintiff”) is an inmate in the custody of the Nevada Department

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of Corrections (“NDOC”). Presently, plaintiff is incarcerated at Northern Nevada Correctional

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Center (“NNCC”) in Carson City, Nevada. In his complaint (#4), and as permitted by the District

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Court’s screening order (#3), plaintiff brings civil rights claims pursuant to 42 U.S.C. § 1983

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against two NNCC officials (collectively, “defendants”): Sergeant Eugene Murguia (“Murguia”)

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and Sergeant Brian Wagner (“Wagner”). First, he alleged that defendants violated his Fourteenth

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Amendment rights by depriving him of his television without due process of law. (#3 at 3.)

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Second, he alleged that defendants destroyed the television in retaliation for his filing a grievance

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regarding its confiscation. (#3 at 3-4.)

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On February 12, 2014, defendants filed a motion to dismiss or, in the alternative, for

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summary judgment (#31). This court recommended that the District Court grant the motion on

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July 29, 2014 (#65). However, on September 25, defendants withdrew their motion (#84).

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Plaintiff brought to the court’s attention that an affidavit filed with defendants’ motion was

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factually false. (See #76.) Because the court’s analysis relied on the affidavit’s false statements,

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the court withdrew its recommended disposition. (See #85.)

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Thereafter, plaintiff sought leave to file a first amended complaint (“FAC”) (#73) on

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September 3, 2014. Defense counsel declined to oppose the motion but requested that the court

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stay proceedings until it had rescreened the complaint (#88). The court rejected the motion

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because rescreening is discretionary (#89). Defendants then opposed plaintiff’s motion to file the

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FAC on the basis that it was procedurally deficient (#90). They also filed an objection with the

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District Court to this court’s order regarding rescreening (#91).

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Prior to the District Court’s ruling on the objection, and as his motion for leave to file the

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FAC was pending, plaintiff filed a “corrected first amended complaint” (“CFAC”) without filing

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a motion for leave to amend (#93). Subsequently, on November 12, 2014, the District Court

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overruled defendant’s objections (#96).

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discretionary and could be conducted by this court on a case-by-case basis. Therefore, on January

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7, 2015, this court ordered that defendants would have until January 16, 2015 to file an opposition

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to plaintiff’s motion to file the CFAC (#100). In response, defendants moved for a discretionary

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rescreening (#102). They argued that the CFAC added “new allegations, legal claims, and

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proposed defendants,” and rescreening was proper on that basis. (#102 at 8.) Defendants also

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stated that it was unclear which complaint required opposition—the FAC (#73) or the CFAC

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(#93).

The District Court held that rescreening was

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To resolve these on-going matters, the court set a hearing (#105). There, it denied without

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prejudice plaintiff’s motion to file the FAC (#73) due to its procedural deficiencies and also

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defendants’ motion for discretionary rescreening (#102) based upon the length of time that had

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elapsed since the initial screening. The court also struck the fugitive CFAC (#93) because it was

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unaccompanied by a motion for leave to amend.

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understandably confused by the proceedings, however, the court ordered that plaintiff file a new

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motion for leave to amend, with a copy of the amended complaint as required by the Local Rules

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of Practice, and informed defendants of the relevant deadlines for opposing plaintiff’s motion for

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leave. The court also suggested that, to the extent defendants remained uncertain about when the

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Recognizing that the parties were

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court may exercise its discretion to rescreen, defendants should seek clarification from the

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District Court (#105).1

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Accordingly, after many rounds of motion practice relating to his amended complaint,

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plaintiff moved for leave to file an amended complaint (#104). Defendants opposed (#106), and

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plaintiff replied (#107). This order follows.
II.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 15(a)(2) instructs that “[t]he court should freely give

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leave [to amend a pleading] when justice so requires.” However, the ability to amend is not

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without limits. Federal courts balance five factors when considering a motion to amend: (1) bad

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faith; (2) undue delay; (3) prejudice to the opposing party; (4) the futility of the amendment; and

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(5) whether the plaintiff has previously amended his complaint.

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Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014). The factors do not weigh equally; as the Ninth

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Circuit has explained, prejudice receives greatest weight. Eminence Capital, LLC v. Aspeon, Inc.,

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316 F.3d 1048, 1052 (9th Cir. 2003). Defendants bear the burden of establishing prejudice, and

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absent its presence or a “strong showing” under the other factors, there is a presumption in favor

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of permitting amendment. Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186-87

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(9th Cir. 1987)).

Desertrain v. City of Los

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When considering prejudice, the court may weigh against the movant the amended

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pleading’s great alteration of the litigation’s nature and its effect of requiring an entirely new

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course of defense. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.

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1990). Alone, such alteration is not fatal. Id. In contrast, futility “alone can justify the denial of

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a motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 809 (9th Cir. 2003). Futility

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arises when the amendment is legally insufficient, Miller v. Rykoff-Sexon, Inc., 845 F.3d 209, 214

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(9th Cir. 1988), or “where the amended complaint would . . . be subject to dismissal[,]” Steckman

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v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).

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Apparently, defendants did not do so.
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III.

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DISCUSSION

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For the following reasons, plaintiff’s motion to file an amended complaint is granted.

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However, as described below, plaintiff shall be allowed to proceed only on certain claims within

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the amended complaint.

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A.

Count I: Due Process and Retaliation Claims

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In count I of the amended complaint (#104-1 at 7-13), plaintiff alleges intentional

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deprivation of property by defendants Wagner and Murguia, in violation of the Fourteenth

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Amendment, and also their retaliation against him for his use of the grievance system, in violation

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of the First Amendment.

These claims are substantially similar to the original First and

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Fourteenth Amendment claims, which the District Court allowed to proceed in its screening order

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(#3 at 3-4.)

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allegations about and surrounding the operability of his confiscated television, of which he

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learned only after the commencement of this action.

Plaintiff’s amended complaint simply updates the complaint with new factual

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The court grants plaintiff’s motion because the Desertrain factors weigh in his favor.

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First, he has not updated count I’s facts in bad faith. Second, any delay in amendment owes not

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to plaintiff, but instead, to the actions of defendants and/or other prison officials.

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defendants will not be prejudiced, as the factual allegations are similar and the claims are

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identical to those in the original complaint. Fourth, amendment is not futile, for the amended

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complaint states colorable First and Fourteenth Amendment claims, as identified in the original

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screening order. Finally, plaintiff has not previously been granted leave to amend. Accordingly,

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plaintiff may proceed on count I under the First and Fourteenth Amendments.

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B.

Third,

Count II: Retaliation and Due Process Claims

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In a new count II, plaintiff alleges retaliation under 42 U.S.C. § 1997d and the First

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Amendment, and also denial of visitation without due process of law under the Fourteenth

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Amendment. Plaintiff avers that he complained about the alleged maltreatment of a female

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inmate with “mental and/or learning disabilities” at NNCC; she was purportedly held in a male

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area of the prison and faced sexual harassment and threats of sexual abuse by male inmates and

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male prison staff. (#104-1 at 15-16). Plaintiff alleges that these on-going incidents would have
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required the prison to report violations under the Prison Rape Elimination Act, 42 U.S.C. § 15601

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et seq. (Id.) He reported them to prison officials who allegedly took no action to rectify the

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situation; therefore, he provided the information to his wife by written notes during a December

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21, 2013 visitation. (Id. at 16-19.)

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Thereafter, plaintiff contends that prison officials began disciplinary proceedings for his

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transmission of the notes, and imposed as a punishment his loss of his job as an inmate law clerk

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and visitation privileges (Id. at 20-21.) Plaintiff continued to seek redress of the issue with prison

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officials until spring 2014. (See id. at 22-23.) He names Murguia, NNCC Warden Isidro Baca,

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and NNCC correctional officer Peter Garibaldi as defendants in count II.2 Defendants oppose

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plaintiff’s motion to amend on the basis that count II “would alter the scope of the case . . . and

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only bears a tangential relation to [his] original claims . . . . Therefore, Count II is unduly

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prejudicial.” (#106 at 8.)

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Plaintiff will be permitted to proceed on the constitutional claims but not the statutory

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claim. 42 U.S.C. § 1997d does not provide a private right of action. McRorie v. Shimoda, 795

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F.2d 780, 782 n.3 (9th Cir. 1986); Price v. Brittain, 874 F.2d 252, 262-64 (5th Cir. 1989);

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O’Haire v. Napa State Hosp., No. C 07-0002-RMW-PR, 2009 WL 2447752 at *5 (N.D. Cal.

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Aug. 7, 2009) (citing McRorie, 795 F.2d at 782 n.3). Accordingly, the statutory claim is futile.

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Nunes, 375 F.3d at 809.

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In contrast, the Desertrain factors balance in plaintiff’s favor as to the constitutional

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claims. First, there is no suggestion—and defendants make no argument—that plaintiff seeks to

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amend in bad faith. Second, regarding delay, the court concludes the factor is neutral. The record

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does not readily indicate that plaintiff has unduly delayed in attempting to add the claims. The

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alleged infringements of his rights did not occur until the end of 2013, and as such, the earliest he

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might have amended his complaint was early 2014—a period of time in which plaintiff and

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Plaintiff also states that “other prison officials” participated in these violations (see #104-1 at
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in the opening of his amended complaint (see id. at 3-4). As such, the court recommends that the
claim proceed only against the above-named defendants. Plaintiff should seek leave to amend to
add new defendants he identifies in discovery if, in fact, there are additional defendants to these
claims.
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defendants were focused upon defendants’ pending motion to dismiss (#31). Plaintiff attempted

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to amend his complaint in September 2014 (#73) and notably did not attempt to include these

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claims at that time. Nevertheless, and as described, defendants delayed his filing of an amended

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complaint in this case by motion practice around the rescreening issue. In sum, the delay factor

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does not conclusively balance against either party.

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Third, the court is unpersuaded that defendants will be unduly prejudiced by amendment.

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Here, defendants rest their entire argument on the claims’ alteration of this action’s scope.

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Although their characterization is accurate, such alteration alone is an insufficient basis for

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denying plaintiff leave to amend. Morongo Band of Mission Indians, 893 F.2d at 1079. In light

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of this Ninth Circuit precedent, defendants’ reliance on district-court authority from other circuits

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(see #106 at 7-8) is unavailing. Moreover, because defendants have not yet filed an answer, and

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no discovery has occurred in this case, any prejudice to defendants is minimal. They may need to

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raise new defenses and discover evidence related thereto, but the management of this case can

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easily reflect the presence of these new claims upon the court’s entry of an initial scheduling

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order. The defendants added in this claim also will be no more prejudiced by being parties to this

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lawsuit than they would be were plaintiff to file a new action. Because defendants bear the

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burden of demonstrating prejudice, Eminence Capital, LLC, 316 F.3d at 1052, but have offered

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only one unpersuasive argument regarding the same, the court concludes that this factor weighs in

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plaintiff’s favor.

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As to futility, the court finds that count II’s constitutional claims are colorable. Plaintiff

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has alleged that defendants imposed punishment in response to his allegedly lawful First

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Amendment activity, and his allegations, if true, are sufficient under the factors identified in

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Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2004). As to his related, but separate,

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Fourteenth Amendment due process claim, plaintiff has no constitutional right to visitation with

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his wife. See Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989); Dunn v. Castro,

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621 F.3d 1196, 1202-03 (9th Cir. 2010). Yet he may have a state-created liberty interest in such

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visitation, see Thompson, 490 U.S. at 461, subject to restrictions that serve legitimate penological

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interests, see Overton v. Bazzetta, 539 U.S. 126, 132 (2003). At this stage, his claims are not
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futile; therefore, Desertrain counsels in favor of granting him leave to amend. Because he has

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not previously been granted leave to amend, and none of the other factors balance against him,

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plaintiff shall proceed on the First and Fourteenth Amendment claims in count II.

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C.

Count III: Conspiracy Claim

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In a new count III, plaintiff alleges that Wagner, Deputy Attorney General Chaz Lehman

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(“Lehman”), and an unidentified person who acted at Lehman’s instruction, conspired against

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plaintiff “to [conceal] and further the constitutional violations set forth . . . in count I . . . .”

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(#104-1 at 30-31.) In short, he contends that defendants prepared and submitted the factually

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false affidavit regarding the inoperability of his television with knowledge of its falsity, for the
purpose of effecting the alleged constitutional infirmities previously described.

Defendants

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oppose amendment on the basis that plaintiff’s contentions state not a legal claim, but instead

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already resolved by Rule 11 of the Federal Rules of Civil Procedure. (#106 at 8.)

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This claim is dismissed because, as stated, it is futile. Nunes, 375 F.3d at 809. Although
the amended complaint does not specify a legal basis for the conspiracy claim, it fails under either

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possibility. First, only the first clause of subsection (3) is applicable as a basis for conspiracy
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under 42 U.S.C. § 1985. See Kush v. Rutledge, 460 U.S. 719, 724-25 (1983) (describing the “five

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broad classes of conspiratorial activity” contained within the statute). That provision provides a

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federal cause of action against persons who have conspired to deprive a person of federally-

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protected rights.

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Claims of conspiratorial activity under 42 U.S.C. § 1985 must meet several requirements.
The plaintiff must tender specific factual allegations that support the alleged conspiracy, Burns v.
Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989); Karim-Panahi v. Los Angeles Police Dep’t, 839

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F.2d 621, 626 (9th Cir. 1988), including factual allegations regarding defendants’ conspiratorial

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“agreement or meeting of the minds,” Woodrum v. Woodward Cnty., 866 F.3d 1121, 1126 (9th

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Cir. 1989). In addition, the plaintiff must specifically allege that defendants’ racial or class-based
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animus caused the conspiracy. Usher v. City of Los Angeles, 828 F.3d 556, 561 (9th Cir. 1987);

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Kush, 460 U.S. at 725-26. For this reason, the statute is not an “open-ended federal tort law

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applicable ‘to all tortious, conspiratorial interferences with the rights of others.’” Kush, 460 U.S.

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at 725 (quoting Griffin v. Breckenridge, 403 U.S. 88, 101 (1971)).

Because the alleged

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conspiracy in this case lacks allegations that speak to these elements, the claim is futile and
amendment to add this claim is not merited.
Second, the allegations fail to state a state-law conspiracy claim.

“In Nevada, an

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actionable civil conspiracy ‘consists of a combination of two or more persons who, by some

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concerted action, intend to accomplish an unlawful objective for the purpose of harming another,

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and damage results from the act or acts.’” Chavez v. Cal. Reconveyance Co., No. 2:10-cv-00325-

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RLH-LRL, 2010 WL 2545006, at *4 (D. Nev. June 18, 2010) (quoting Hilton Hotels v. Butch

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Lewis Productions, 109 Nev. 1043, 1048 (1993)). Damage is a necessary element. See Shafer v.

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City of Boulder, 896 F. Supp. 2d 915, 939-40 (D. Nev. 2012).

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Plaintiff’s claim fails in absence of damages. Plaintiff alleges not that Wagner, Lehman,

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and the unnamed official conspired to carry out the underlying violations set forth in count I, but

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instead to prepare the false affidavit by which these alleged actions might be concealed.

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Accordingly, the affidavit, rather than the deprivation of his television, must be the source of his

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harm. As defendants argue, Lehman withdrew the affidavit and the motion to dismiss based

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thereupon when the television’s operational status came to light. (#106 at 8.) Hence, the effect of

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the affidavit was only to delay this case, and although plaintiff “disagrees” with defendants’

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contention that no injury occurred (#107 at 9), he fails to identify any particular injury he suffered

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as a result of the affidavit. As such, the prior proceedings regarding the affidavit itself provide no

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basis for a state-law civil conspiracy claim.

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IV.

CONCLUSION

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The court has considered the motion and the parties’ papers. For good cause appearing,

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the court grants plaintiff’s motion for leave to amend. Plaintiff’s amended complaint will be

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filed, and he shall proceed on count I against Murguia and Wagner, and count II against Muguia,

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Baca, and Garibaldi. However, count II’s claim under 42 U.S.C. § 1997d shall not proceed, and

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count III is dismissed with leave to amend. See Cato v. United States, 70 F.3d 1103, 1106 (9th

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Cir. 1995) (citation omitted).
V.

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IT IS THEREFORE ORDERED that plaintiff’s motion to amend (#104) is

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GRANTED;
IT IS FURTHER ORDERED that the Clerk shall FILE the amended complaint (#104-

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RECOMMENDATION

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IT IS FUTHER ORDERED that count I shall PROCEED under the First and
Fourteenth Amendments;
IT IS FURTHER ORDERED that count II shall PROCEED under the First and
Fourteenth Amendments;
IT IS FURTHER ORDERED that count II’s claim under 42 U.S.C. § 1997d is
DISMISSED;

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IT IS FURTHER ORDERED that count III is DISMISSED WITH LEAVE TO

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AMEND. Plaintiff has thirty (30) days from the date of this order within which to file an

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amended complaint remedying, if possible, the defects identified above. Any allegations, parties,

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or requests for relief from prior papers that are not carried forward in the amended complaint will

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no longer be before the court.

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DATED: May 26, 2015.
______________________________________
UNITED STATES MAGISTRATE JUDGE

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