The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS & RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff brings this action against Governor Schwarzenegger and Board of Parole Hearing (BPH) Commissioners, Welch and Quintiliani, for allegedly violating the Religious Land Use and Incarcerated Persons Act of 2000 (RLUIPA) by considering plaintiff's grooming rule violations during his parole hearings. Plaintiff seeks declaratory and injunctive relief barring the consideration of grooming rule violations in future hearings. Defendants contend that plaintiff's grooming rule violations have been expunged from his record and this action is therefore moot.
Pending before the court are: 1) defendants' motion for summary judgment, filed on December 19, 2008, to which plaintiff replied; 2) plaintiff's motion for leave to file a fourth amended complaint*fn1 , filed on March 2, 2009, to which defendants have filed their opposition; 3) plaintiff's motion for declaratory relief, filed on March 2, 2009; 4) plaintiff's request to consolidate this case with another action, filed on April 7, 2009; and 5) plaintiff's request for a temporary restraining order/preliminary injunction, filed on April 17, 2009. The court will address plaintiff's request to file a fourth amended complaint first.
II. Motion to File a Fourth Amended Complaint
This action, filed nearly four years ago, on June 20, 2005, is now proceeding on the third amended complaint, filed on November 29, 2007, against the three defendants, all of whom have filed answers. See Docket #34. Defendants also filed a motion for summary judgment nearly three months prior to plaintiff's instant request. Plaintiff now seeks leave to proceed upon a fourth amended complaint.
Once an answer has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Fed. R. Civ. P. 15(a). As noted, the defendants have previously filed their answers and oppose this motion.
Plaintiff's proposed fourth amended complaint identifies two additional named defendants, in addition to several other unidentified BPH commissioners, along with new allegations. The motion and proposed fourth amended complaint were filed a year and a half after the third amended complaint. Defendants contend that the proposed fourth amended complaint would work to the substantial prejudice of defendants insofar as additional discovery would be necessitated and a motion for summary judgment is already pending.
As to granting leave to amend at the point at which pleadings may only be granted by leave of court, Fed. R. Civ. P. 15(a)(2) states that "[t]he court should freely give leave when justice so requires." Nevertheless "whether to grant leave to amend .... remains within the discretion of the district court...." Manzarek v. St. Paul Fire and Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008). "Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment." Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007), quoting Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir.1991) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962)). It is an abuse of discretion to deny leave to amend "without any justifying reason." Forman, supra.
There is little doubt that adding the proposed allegations and additional defendants would work to the prejudice of the defendants, in light of the already significant amount of litigation. Plaintiff does not offer a reasonable justification for his undue delay in attempting to add defendants and allegations that occurred prior to his filing the third amended complaint and could have been included in that complaint. Plaintiff essentially requests that this five-year-old case should basically be re-commenced in order to serve additional defendants and proceed with discovery anew. Plaintiff's request is denied. Plaintiff's proposed fourth amended complaint will be stricken and this action will continue to proceed on the third amended complaint.
III. Motion for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Fed. R. Civ. P. 56(c) is met. "The judgment sought shall be rendered forthwith if . . . there is no genuine issue as to any material fact, and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," ...