Denton v. Pastor et al

Filing 168

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S 164 MOTION TO AMEND COMPLAINT; signed by Magistrate Judge Theresa L Fricke. Defendants' motion to dismiss (Dkt. 160 ) shall be DENIED without prejudice as MOOT. Plaintiff's fourth amended complaint due on or before March 5, 2021. (SP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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Michael Denton,
Case No. 3:17-cv-05075-BHS-TLF

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Plaintiff,
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION TO AMEND COMPLAINT

v.
Paul A Pastor,
Defendants.

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This matter is before the Court on plaintiff’s motion for leave to amend (Dkt. 164)

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and proposed amended complaint (Dkt. 165). Defendant has filed a response opposing

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plaintiff’s motion (Dkt. 166) and plaintiff has filed a reply in support of the motion (Dkt.

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167). In addition, plaintiff asks the Court to find that the proposed amended complaint

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relates back to the original filing date of this action. Dkts. 164, 167. Defendant has filed

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a motion to dismiss plaintiff’s third amended complaint, which is pending before the

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court. Dkt. 160.

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This matter has been referred to the undersigned Magistrate Judge. Mathews,

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Sec’y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule

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MJR 4(a)(4). For the reasons set forth below, the Court GRANTS in part and DENIES in

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part plaintiff’s motion for leave to amend. The Court DENIES defendant’s motion to

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dismiss the complaint as MOOT.

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 1

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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed his original complaint, pro se and in forma pauperis, on February 1,

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2017 under 42 U.S.C. § 1983, raising 11 claims against more than a dozen named

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defendants. Dkt. 11. The Court subsequently allowed plaintiff to file his first amended

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complaint in which he named additional defendants, asserting 20 claims alleging

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violations of his federal constitutional rights. Dkt. 85, 86.

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Plaintiff subsequently retained counsel. Dkt. 133. Following the Court’s adoption

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of the undersigned’s Report and Recommendation on res judicata (Dkt. 142),

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defendants filed an answer to plaintiff’s first amended complaint. Dkt. 143. Defendants

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also served plaintiff with initial disclosures and answers to plaintiff’s first set of discovery

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requests. Dkt. 147-1 at 5. Plaintiff did not serve defendants his initial disclosures or

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responses to defendants’ discovery requests, and instead moved to amend the

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complaint a second time. Dkt. 148 at 3. The Court granted plaintiff’s motion to file a

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second amended complaint. Dkt. 149.

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Defendants moved to dismiss the second amended complaint. Dkt. 151. The

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Court granting the motion in part and granted plaintiff leave to amend the complaint

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once again. Dkt. 156. Plaintiff filed his third amended complaint on September 30,

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2020. Dkt. 157. Defendants filed a motion to dismiss the complaint on October 21,

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2020. Dkt. 160. See also, Plaintiff’s Response to Motion to Dismiss, Dkt. 162;

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Defendant’s Reply, Dkt. 163.

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Plaintiff filed this motion for leave to file a fourth amended complaint on
December 8, 2020. Dkt. 164.

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 2

DISCUSSION

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I.

Relation Back

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Plaintiff requests that the amended complaint be held to relate back to his

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February 2017 original complaint. Defendant appears to argue that state law would

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preclude relation back in this case. Dkt. 166 at 2. Rule 15 controls relation back of

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amendments in federal court, excepting when state law would be more lenient than the

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federal rules. Fed. R. Civ. P. 15(c); Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d

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1191, 1200 (9th Cir. 2014); see also Mullens v. City of Lakewood, 2016 U.S. Dist.

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LEXIS 117690 at *30 (Wa. W.D. Aug. 9, 2016) (finding that Washington’s CR 15 mirrors

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Fed. R. Civ. P. 15(c) and is “arguably slightly less generous” regarding relation back).
Fed. R. Civ. P. 15 provides that when newly asserted claims arise out of the

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conduct, transaction, or occurrence set out in the original pleading, they relate back to

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the date of the originally filed complaint for statute of limitations purposes. Fed. R. Civ.

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P. 15(c)(1)(B). Within the original period allotted by Rule 4(m) for service and summons,

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a party sought to be brought in by amendment must have received notice of the action,

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and known or should have known that the action would have been brought within the

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original complaint, but for mistake of the proper party’s identity. Fed. R. Civ. P.

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15(c)(1)(C).

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The parties do not dispute that the state law claims arise out of the same conduct

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as the originally filed federal claims. Additionally, because defendants Duray and Pastor

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were among the defendants originally named in plaintiff’s lawsuit, they were properly

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noticed of the action, regardless of the new claim plaintiff now seeks to bring against

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 3

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them. Therefore, the amended claims relate back to February 1, 2017, when plaintiff

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filed a motion for IFP and his first proposed complaint in this court.

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II.

Leave to Amend

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Plaintiff seeks leave to “narrow the scope of his claims by removing his Sixth

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Amendment and First Amendment religious freedom claims,” and removing his claim for

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injunctive relief. Dkt. 164 at 2. Plaintiff also seeks to adjust his remaining claims with

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respect to the specific defendants assigned to each claim and certain factual assertions:

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“remov[ing] defendants from certain claims, specif[ying] defendants in other claims,

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[and] correct[ing] dates.” Id. His proposed fourth amended complaint (Ex. A of

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Declaration of Plaintiff’s Counsel, Dkt. 165, at 6-23) would not add defendants to the

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suit, but it would add claims for supervisory liability to two defendants, Sgt. Duray and

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Sheriff Pastor. Id.

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The Court “should freely give leave when justice so requires." Fed. R. Civ. P.

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15(a)(2). In determining whether to grant leave, the court considers five factors: “bad

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

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the plaintiff has previously amended the complaint.” United States v. Corinthian

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Colleges, 655 F.3d 984, 995 (9th Cir. 2011). Rule 15(a) creates a presumption in favor

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of granting leave to amend absent prejudice or a strong showing of any of the other

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factors. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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Undue Delay and Prejudice to Defendants

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Defendants’ opposition to amendment is limited to the claim for negligent

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supervision plaintiff purports to bring against defendants Duray and Pastor. Defendants

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do not oppose plaintiff amending his complaint to withdraw the claims for violation of his

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 4

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Sixth Amendment right to effective assistance of counsel and First Amendment right to

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freedom of religion. Defendant argues that plaintiff should not be permitted to use the

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same justifications as he claimed over a year before, when seeking leave to file his third

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amended complaint – or else plaintiff could amend his complaint after any period of

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delay. Dkt. 166 at 3. Counsel for plaintiff has repeated the assertion that litigation on

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plaintiff’s behalf is hindered by the same factors of difficulty communicating with plaintiff

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in solitary confinement and the complexity of representing plaintiff in multiple actions

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against the state. Dkt. 164 at X. Plaintiff’s counsel adds that ongoing circumstances of

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the last year, namely, facility-limited access to phone communication and other logistical

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barriers arising from the COVID-19 pandemic, have caused unavoidable delay in

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representation. Dkt. 167 at 2.
Defendants have not shown they will be prejudiced if plaintiff is granted leave to

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amend. Although the parties have continued motion practice, the litigation remains at an

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early stage. The parties have not submitted a joint status report, there has been no

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scheduling order set, and the parties have yet to engage in significant discovery.

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Defendant has not asserted any facts indicating that the period between the filing of the

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third amended complaint and plaintiff’s motion to amend has prejudiced their litigation,

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aside from defendant having filed a motion to dismiss in the meantime. To the extent

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that defendant objects to an amendment’s effect on dispositive motions, defendant may

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not argue that a requirement to continue litigating an action amounts to a prejudicial

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delay.

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Accordingly, defendants have failed to meet their burden of showing either undue
delay or prejudice if plaintiff is allowed to amend the operative complaint. Furthermore,

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 5

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there is no evidence that plaintiff has brought this motion to amend in bad faith.

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Although plaintiff has previously amended his complaint several times, the proposed

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complaint would be the second amendment undertaken by counsel and would

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streamline the issues at hand – benefiting the efficiency of litigation.

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Futility

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Defendant additionally argues that the amendment would be futile, asserting that

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plaintiff seeks to bring a Monell municipal liability claim against defendants Duray and

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Pastor without having pleaded the requisite facts showing that the “county's own

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conduct, such as implementing a deficient policy,” caused the alleged violation. Dkt. 166

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at 3 (citing Escatell v. Cty. of San Diego, 76 F.3d 385 (9th Cir. 1996); Monell v. New

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York City Dept. of Social Servs., 436 U.S. 658, 691 (1978)). Yet the complaint’s third

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claim for relief alleges claims for supervisory liability in the defendants’ individual

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capacity, which are distinct from plaintiff’s Monell claims against Pierce County (the

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complaint’s fifth labeled claim for relief). Dkt. 165, at 16, 18.

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“A supervisor may be liable under § 1983 only if there exists either ‘(1) his or her

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personal involvement in the constitutional deprivation, or (2) a sufficient causal

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connection between the supervisor's wrongful conduct and the constitutional violation.’”

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Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001). “Supervisory liability is imposed

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against a supervisory official in his individual capacity for his own culpable action or

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inaction in the training, supervision, or control of his subordinates, for his acquiescence

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in the constitutional deprivations of which the complaint is made, or for conduct that

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showed a reckless or callous indifference to the rights of others.” Corales v. Bennett,

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567 F.3d 554, 570 (9th Cir. 2009).

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 6

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Supervisory officials may be held liable if they implement a policy so deficient

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that the policy "itself is a repudiation of constitutional rights" and is "the moving force of

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a constitutional violation." See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).

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Officers may not be held liable merely for being present at the scene of a constitutional

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violation or for being a member of the same operational unit as a wrongdoer. Felarca v.

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Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (citing Jones v. Williams, 297 F.3d 930,

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936-37 (9th Cir. 2002)).

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Plaintiff’s claim against defendant Duray arises from two factual allegations
suggesting more than defendant Duray’s mere presence during the alleged violations.

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See Felarca, 891 F.3d at 820. First, plaintiff alleges that defendant Officer Allen

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physically attacked plaintiff while Sgt. Duray kept a taser trained on plaintiff, suggesting

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defendant Duray’s personal involvement in the unconstitutional use of force. Dkt. 165, at

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13. Second, plaintiff alleges that after three other named defendants nearly severed

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plaintiff’s finger, Sgt. Duray verbally harassed plaintiff, saying “You lucky you still have a

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finger, I would have cut it off.” Dkt. 165, at 13-14. Allegations of such conduct tends to

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indicate defendant Duray’s “acquiescence in the constitutional deprivations” alleged.

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See Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009).

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Plaintiff’s supervisory liability claims against defendant Pastor are less clearly

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pleaded. In the proposed fourth amended complaint, plaintiff alleges defendant Pastor

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(and others) established a policy forcing pre-trial detainees to share shaving materials,

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a policy restricting outside recreation privileges for detainees in plaintiff’s unit, and a

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security alert policy depriving plaintiff of the daily hour allotted for recreation. Dkt. 165,

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at 10-11. Yet plaintiff does not plead these policies are unconstitutional or caused any

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 7

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alleged constitutional violations, thereby failing to state a claim for a supervisor’s

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implementation of an unconstitutional policy. See Hansen v. Black, 885 F.2d 642, 646

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(9th Cir. 1989).

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Rather, plaintiff alleges that defendant Pastor became aware of other defendants’

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constitutional violations after plaintiff first filed his lawsuit on February 22, 2017. Plaintiff

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pleads no other facts to support his assertion that “Defendant Paul Pastor as the sheriff

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of the jail failed to supervise the employees of the jail and allowed the correctional staff

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to violate the constitutional rights of inmates like [plaintiff].” Dkt. 165, at 17. Vicarious

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liability, or respondeat superior, is not available under § 1983. Redman v. Cty. of San

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Diego, 942 F.2d 1435, 1446-7 (9th Cir. 1991). The proposed complaint does not allege

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facts showing a causal connection between defendant Pastor’s conduct and any

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constitutional violations either before or after plaintiff filed this lawsuit, much less any

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personal involvement. Plaintiff’s proposed amendment to include a supervisory liability

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claim against Defendant Pastor would therefore be futile.

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CONCLUSION

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The Court therefore orders that plaintiff’s motion for leave to amend should be

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GRANTED in part and DENIED in part. Plaintiff shall be permitted to withdraw claims

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from the third amended complaint, to substitute named defendants in the appropriate

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remaining claims as proposed, and to add a supervisory liability claim against defendant

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Duray under 42 U.S.C. § 1983. Plaintiff may add a supervisory liability claim against

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defendant Pastor only if the amended complaint pleads additional facts sufficient to

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state the claim. The amended complaint shall be subject to screening for failure to state

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a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B).

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 8

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Based on the foregoing, it is ORDERED:

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(1)

DENIED in part.

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(2)

(3)

(4)

Plaintiff’s claims in his fourth amended complaint shall relate back to
February 1, 2017.

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Counsel for plaintiff is directed to file plaintiff’s fourth amended complaint
within seven days, on or before March 5, 2021.

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Defendants’ motion to dismiss (Dkt. 160) shall be DENIED without
prejudice as MOOT.

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Plaintiff’s motion for leave to amend (Dkt. 164) is GRANTED in part and

(5)

The Clerk shall send a copy of this Order to the parties.

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Dated this 26th day of February, 2021.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND COMPLAINT - 9