Smith v. Cox et al

Filing 31

ORDERED that plaintiff's motion to amend (ECF No. 18 ) is GRANTED; Clerk shall FILE the amended complaint (ECF No. 18 -1); Plaintiff's First Amendment retaliation claim shall PROCEED against defendants Baca and Gedney; Plaintiff 9;s Eighth Amendment deliberate indifference claim shall PROCEED against defendants Baca and Gedney; Plaintiff's motion to strike (ECF No. 26 ) is DENIED; and Plaintiff's motion for verification (ECF No. 27 ) is DENIED as moot. IT IS FURTHER ORDERED that a case management conference will be scheduled re pending motion for summary judgment (ECF Nos. 20 , 21 ) and the motion for extension (ECF No. 28 ). Signed by Magistrate Judge Valerie P. Cooke on 1/30/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,

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3:15-cv-00511-RCJ-VPC

WILLIE T. SMITH,

v.

ORDER

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JAMES COX, et al.,
Defendants.

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Before the court is plaintiff’s motion for leave to file an amended complaint (ECF No.

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18), which defendant opposed (ECF No. 24). Plaintiff subsequently filed a motion to strike (ECF

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No. 26), to which defendant responded (ECF No. 29). Also before the court is plaintiff’s motion

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for verification (ECF No. 27). For the following reasons, plaintiff’s motion to amend (ECF No.

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18) is granted, plaintiff’s motion to strike (ECF No. 26) is denied, and plaintiff’s motion for

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verification (ECF No. 27) is denied as moot.

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I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

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Willie T. Smith (“plaintiff”) is an inmate in the custody of the Nevada Department of

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Corrections (“NDOC”). Presently, plaintiff is incarcerated at Ely State Prison (“ESP”) in Ely,

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Nevada. On October 9, 2015, plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983

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(ECF No. 4). The court entered a screening order on March 31, 2016 (ECF No. 3), by which

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plaintiff is permitted to proceed on an Eighth Amendment deliberate indifference to a serious

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medical need claim against defendant Isidro Baca.

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On June 7, 2016, the District Court dismissed with prejudice defendants James Cox,

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Romeo Aranas, J. Garner, and J. Keast from this action. (See ECF No. 6.) On October 5, 2016,

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plaintiff filed a motion for leave to amend his complaint (ECF No. 18), in which he seeks to

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identify Jane Doe defendant as Dr. Karen Gedney and clarify his First Amendment retaliation

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claim.

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II.

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MOTION TO AMEND

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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Discussion

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Plaintiff moves to amend to cure alleged deficiencies in his complaint as well as identify

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Jane Doe defendant as Dr. Karen Gedney. (ECF No. 18 at 3.) However, insofar as plaintiff

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attempts to re-allege the dismissed claims against defendants Cox, Aranas, Garner, and Keast,

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those claims will not proceed, as those defendants have been dismissed with prejudice. (See ECF

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No. 6 at 2.)

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prejudicial, produces undue delay, and is futile (ECF No. 24 at 1.)

Defendant opposes the proposed amended complaint because he claims it is

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The court finds that the motion to amend should be granted, as the Desertrain factors

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weigh in plaintiff’s favor. First, rather than bad faith, the record demonstrates that plaintiff is

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acting in good faith to amend his complaint to replace one of the Doe defendants and correct

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purported deficiencies in the original complaint as to his First Amendment retaliation claim, as

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permitted by the screening order. (See ECF No. 3 at 5.) Second, while plaintiff did move to

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amend well after the thirty-day leave to amend period had expired, it should be noted that plaintiff

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moved to amend before defendant filed his motion for summary judgment and no scheduling

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order has been issued in this case. Therefore, the court finds that plaintiff did not delay in seeking

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amendment.

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Third, defendant is not prejudiced by the amendment, as it merely seeks to clarify Jane

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Doe’s identity and seeks to clarify plaintiff’s First Amendment retaliation claim, which the

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screening order gave plaintiff leave to amend. (See ECF No. 3 at 5.) Defendant argues that he is

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in fact prejudiced as he has been litigating the case for months, has attended a hearing based on

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plaintiff’s current complaint, has attended a mediation, and has drafted and filed a motion for

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summary judgment in this case. (ECF No. 24 at 3.) As discussed above, plaintiff moved to

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amend before defendant’s motion for summary judgment was filed and no scheduling order has

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been filed in this case. Further, because plaintiff is merely identifying a Doe defendant and

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clarifying (by naming as defendants Baca and Gedney) his First Amendment retaliation claim, the

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court does not find that the amended complaint greatly alters the litigation’s nature or requires an

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entirely new course of defense. Morongo Band of Mission Indians, 893 F.2d at 1079. Therefore,

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the court does not find that defendant is prejudiced by amendment.

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Fourth, the court does not find amendment to be futile because amendment here is proper

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to identify the Doe defendant and name defendants Baca and Gedney in plaintiff’s First

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Amendment retaliation claim. Finally, plaintiff has not yet amended, which also weighs in his

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favor. In sum, the five Desertrain factors each weigh in his favor, and, therefore, the court

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concludes that amendment is proper.

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III.

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MOTION TO STRIKE

Pursuant to Federal Rules of Civil Procedure, the “court may strike from a pleading . . .

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any redundant, immaterial, impertinent, or scandalous matter.”

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“Redundant” matters are duplicative and repetitive. Chan v. Pan W. Corp., No. 2:10-cv-1317-

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KJD-PAL, 2011 WL 830237, at *1 (D. Nev. Mar. 4, 2011). “Immaterial” matters are those that

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have “no bearing on the controversy before the court.” Id. “Impertinent” matters are those that

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“are not responsive to the issues that arise in the action . . . .” Id. A matter is “scandalous” when

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it casts a “cruelly derogatory light on a party or other person.” Id. Rule 12(f) motions are drastic

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remedies and, as such, are generally disfavored by federal courts. Nevada Fair Hous. Ctr., Inc. v.

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Fed. R. Civ. P. 12(f).

Clark Cnty., 565 F. Supp. 2d 1178, 1187 (D. Nev. 2008).

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Plaintiff moves to strike defendant’s opposition (ECF No. 24) to plaintiff’s motion to

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amend, defendant’s motion for summary judgment (ECF No. 21), and defendant’s motion for

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leave to file documents under seal (ECF No. 20) on the grounds that they are made in bad faith,

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are moot, and are scandalous. (ECF No. 26 at 3, 6.) Having thoroughly reviewed defendant’s

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opposition and motion for summary judgment, the court does not find them to be “redundant,

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immaterial, impertinent, or scandalous.” Fed. R. Civ. P. 12(f). Accordingly, the court denies

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plaintiff’s motion to strike (ECF No. 24).
IV.

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MOTION FOR VERIFICATION

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Finally, before the court is plaintiff’s motion for verification (ECF No. 27). The court

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construes this motion as a certificate of service for plaintiff’s motion to strike (ECF No. 24).

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Because plaintiff’s motion to strike was filed with the clerk of court, plaintiff’s motion for

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verification is denied as moot.
V.

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IT IS THEREFORE ORDERED that plaintiff’s motion to amend (ECF No. 18) is

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GRANTED;
IT IS FURTHER ORDERED that the Clerk FILE the amended complaint (ECF No. 18-

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CONCLUSION

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IT IS FURTHER ORDERED that plaintiff’s First Amendment retaliation claim shall

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PROCEED against defendants Baca and Gedney;
IT IS FURTHER ORDERED that plaintiff’s Eighth Amendment deliberate indifference

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claim shall PROCEED against defendants Baca and Gedney;
(ECF No. 24)
IT IS FURTHER ORDERED that plaintiff’s motion to strike (ECFNo. [26]) is DENIED;

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and
IT IS FURTHER ORDERED that plaintiff’s motion for verification (ECF No. 27) is
DENIED as moot.

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IT IS FURTHER ORDERED that a case management conference will be scheduled to

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discuss the effect of this order on defendant’s pending motion for summary judgment (ECF Nos.

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20, 21) and plaintiff’s motion for extension (ECF No. 28).

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IT IS SO ORDERED.

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DATED: January 30, 2017.

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______________________________________
UNITED STATES MAGISTRATE JUDGE

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