Thomas v. Marks et al

Filing 38

ORDER denying ECF No. 29 Motion to Amend/Correct. IT IS FURTHER ORDERED that the original complaint, (ECF No. 7 ), screening order (ECF No. 6 ), and scheduling order, (ECF No. 25 ), remain operative in this case. Signed by Magistrate Judge Carla Baldwin on 7/9/2024. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - GA)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 EDDIE THOMAS, 5 Plaintiff, 6 7 Case No. 3:23-CV-00131-ART-CLB v. ORDER DENYING MOTION FOR LEAVE TO AMEND COMPLAINT [ECF No. 29] DR. MARKS, et. al., 8 Defendants. 9 10 Before the Court is Plaintiff Eddie Thomas’s (“Thomas”) motion for leave to file an 11 amended complaint, along with a proposed amended complaint. (ECF Nos. 29, 29-1.) 12 Defendants Myles Etcheberry, Erin Parks, and Dr. Dana Marks (collectively referred to as 13 “Defendants”) opposed the motion, (ECF No. 32), and Thomas replied, (ECF No. 33). For 14 the reasons discussed below, Thomas’s motion for leave to file an amended complaint, 15 (ECF No. 29), is denied. 16 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 17 Thomas is an inmate in the custody of the Nevada Department of Corrections 18 (“NDOC”) and is currently housed at the Southern Desert Correctional Center (“SDCC”). 19 On March 24, 2023, Thomas initiated this action by filing an application to proceed in 20 forma pauperis (“IFP”) and a civil rights complaint based on an incident that occurred 21 when he was housed at the Lovelock Correctional Center (“LCC”). (ECF Nos. 1, 1-1, 7.) 22 On October 18, 2023, the District Court screened Thomas’s complaint pursuant to 23 28 U.S.C. § 1915A and allowed Thomas to proceed on a single Eighth Amendment claim 24 based on deliberate indifference to serious medical needs against Defendants Marks, 25 Pushton, Parks, Etcheberry, Austin, and John Doe. (ECF No. 6.) The Court dismissed 26 with prejudice claims for conspiracy, intentional infliction of emotional distress, equal 27 protection, and negligence, and dismissed with prejudice Defendants State of Nevada, 28 Utilization Review Panel, and Sergeant Odea. (Id.) 1 Following screening, the action was stayed for 90-days to allow the parties an 2 opportunity to participate in an Inmate Early Mediation Conference (“IEM”) and potentially 3 settle this case. (ECF No. 10.) The parties participated in the IEM on December 19, 2023, 4 but ultimately a settlement was not reached. (Id.) 5 Following the IEM, the Court granted Thomas’s IFP application and ordered 6 service of the complaint. (ECF No. 12.) Additionally, the Court ordered that if the Office 7 of the Attorney General accepted service on behalf of any of the named defendants, then 8 the answer to the complaint was due by March 18, 2024. (Id.) On February 8, 2024, the 9 Office of the Attorney General filed their notice of acceptance of service on behalf of 10 Defendants Etcheberry, Parks, and Marks, but did not accept service on behalf of 11 Defendant Rushton. (ECF No. 13.) 12 On February 14, 2024, Thomas filed a first amended complaint, (“FAC”), (ECF No. 13 17), along with another motion to proceed IFP, (ECF No. 16). The Court denied the newly 14 filed IFP as moot because Thomas had already been granted IFP status. (ECF No. 18.) 15 On March 7, 2024, Defendants file their motion for clarification or alternatively a motion 16 to strike in part the first amended complaint. (ECF No. 19.) The motion sought clarification 17 as to whether Defendants should respond to the original complaint or the FAC. (Id.) On 18 March 18, 2024, Defendants filed an answer to the original complaint. (ECF No. 20.) The 19 Court found that Thomas’s FAC was improper, striking it from the record, and denied 20 Defendants’ motion for clarification as moot. (ECF No. 21.) 21 Following a case management conference, the Court entered a scheduling order 22 and discovery plan, and set the deadline to amend pleadings by June 16, 2024. (ECF 23 Nos. 24, 25.) On May 29, 2024, Thomas filed a motion to amend. (ECF No. 27.) However, 24 Thomas failed to comply with the Local Rules concerning amended complaints, in that he 25 did not file a standalone motion for leave to amend, but rather filed a proposed amended 26 complaint that included a request to amend. Thus, the Court denied the motion for failure 27 to comply with the Local Rules. (ECF No. 28.) On June 6, 2024, Thomas filed the instant 28 motion to amend. (ECF No. 29.) 2 1 II. LEGAL STANDARD 2 Federal Rule of Civil Procedure 15(a)(2) instructs that “[t]he court should freely 3 give[] leave [to amend a pleading] when justice so requires.” The Ninth Circuit has made 4 clear Rule 15(a) permits liberal application. Sonoma Cnty. Ass’n of Retired Emps. v. 5 Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013). Under Rule 15(a), courts consider 6 various factors, including: (1) bad faith; (2) undue delay; (3) prejudice to the opposing 7 party; (4) the futility of the amendment; and (5) whether the plaintiff has previously 8 amended his complaint. Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 9 2014). The factors do not weigh equally; rather, prejudice receives the greatest weight. 10 Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing Eminence 11 Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). 12 Defendants bear the burden of establishing prejudice, and absent its presence or 13 a “strong showing” under the other factors, there is a presumption in favor of permitting 14 amendment. Eminence Cap., LLC, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. 15 Leighton, 833 F.2d 183, 186-87 (9th Cir. 1987)). When considering prejudice, the court 16 may weigh against the movant the amended pleading’s great alteration of the litigation’s 17 nature that requires the opposing party to defend against “different legal theories and . . . 18 different facts.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th 19 Cir. 2006) (internal quotation omitted). Alone, such alteration is not fatal. Morongo Band 20 of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). 21 By contrast, futility “alone can justify the denial of a motion for leave to amend.” 22 Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003) (quoting Bonin v. Calderon, 59 F.3d 23 815, 845 (9th Cir. 1995)). Futility arises when the amendment is legally insufficient, 24 Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017), or where the amended 25 complaint would be subject to dismissal, such as when it violates the statute of limitations. 26 Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008). 27 /// 28 /// 3 1 III. DISCUSSION 2 As discussed above, on May 29, 2024, Thomas sought to amend his complaint for 3 the first time because “[i]n order to evade the Defendants intent to rely on an affirmative 4 defense based on a failure to exhaust administrative remedies… he has now complied 5 and exhaust[ed] the administrative remedies.” (ECF No. 27 at 2-3.) This Court denied 6 Thomas’s motion because of Thomas’s failure to comply with this Court’s Local Rule 15- 7 1(a), requiring a standalone motion to file an amended complaint that is also accompanied 8 by a standalone complaint. (ECF No. 28 at 1-2.) Notably, this Court warned Thomas about 9 its concern that he only sought to amend his complaint to cure a crucial deficiency in his 10 case—his failure to exhaust. (Id. at 2.) This Court explained to Thomas that the Prison 11 Litigation Reform Act (“PLRA”) mandates that prisoners must exhaust their administrative 12 remedies prior to filing suit, not while the suit is pending. Thus, if Thomas did not exhaust 13 his available administrative remedies before filing the instant suit, that deficiency could 14 not be cured by filing an amended complaint. (Id.) 15 Despite this Court’s prior order, Thomas again seeks to amend his complaint; 16 however, it does not appear he has made any substantive changes to his complaint, such 17 as adding claims and/or defendants. (ECF No. 29-1.) Instead, it appears Thomas is 18 attempting to show that he has exhausted his administrative remedies. (Id.; ECF No. 33.) 19 Defendants oppose the motion, arguing Thomas’s amended complaint appears to be an 20 attempt to cure his failure to exhaust administrative remedies as required by the PLRA 21 prior to initiating this action. (ECF No. 32.) 22 Having reviewed Thomas’s proposed amended pleading, the Court finds that the 23 bulk of the Desertrain factors weigh against allowing amendment, and, therefore, the 24 Court concludes that amendment is improper, and accordingly, Thomas’s motion is 25 denied. 26 /// 27 /// 28 /// 4 1 2 3 4 IV. CONCLUSION For good cause appearing and for the reasons stated above, IT IS ORDERED that Thomas’s motion for leave to file an amended complaint (ECF No. 29) is DENIED. IT IS FURTHER ORDERED that the original complaint, (ECF No. 7), screening 5 order (ECF No. 6), and scheduling order, (ECF No. 25), remain operative in this case. 6 July 9, 2024 DATED: ______________. 7 8 9 __________________________________ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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