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Henderson v. Rodriguez


December 23, 2009


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


(Doc. 44)

Plaintiff Curtis Lee Henderson ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On December 2, 2009, Plaintiff filed objections to the Court's November 17, 2009 order which directed the Clerk of Court to return Plaintiff's proposed amended complaint to Plaintiff without filing. Plaintiff contends that the Court mistakenly overlooked its discovery and scheduling order which granted leave to amend the complaint by December 25, 2009. Plaintiff requests that the Court's November 17, 2009 be vacated and Plaintiff be granted leave to file the amended complaint pursuant to Federal Rule of Civil Procedure 15(a).

Pursuant to the Court's scheduling order, the deadline to amend the pleadings is November 19, 2009. Plaintiff's motion is timely under the scheduling order and is therefore governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that Plaintiff may amend with leave of the court, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a).

"Rule 15(a) is very liberal and leave to amend 'shall be freely given when justice so requires.'" AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006) (quoting Fed. R. Civ. P. 15(a)). However, courts "need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile." Id. The factor of "'[u]ndue delay by itself... is insufficient to justify denying a motion to amend.'" Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)). However, "'[w]here the party seeking amendment knows or should know of the facts upon which the proposed amendment is based but fails to include them in the original complaint, the motion to amend may be denied,'" E.E.O.C. v. Boeing, Co., 843 F.2d 1213, 1222 (9th Cir. 1988) (quoting Jordan v. County of Los Angeles, 669 F.2d 1311, 1324 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810, 103 S.Ct. 35 (1982)), and the "court's discretion to deny leave to amend is particularly broad where the court has already given the plaintiff an opportunity to amend his complaint," Fidelity Financial Corp. v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).

The Court has reviewed Plaintiff's proposed amended complaint and finds the amendments to be futile.*fn1 Plaintiff adds the following additional allegations against Correctional officers Plighting and Salcedo, and Litigations Officer Theresa. Plaintiff alleges that on October 11, 2007, Plaintiff told officer Plighting that he had a court call to make. (Doc. 44, Proposed Amended Complaint 13, ¶ 24.) Officer Plighting told Plaintiff that he had seen Plaintiff's name on the department movement sheet, but had heard that Plaintiff had nothing coming. (Id.) Plaintiff then talked to Correctional Officer Salcedo, who went to talk to Litigations Officer Theresa. Officer Salcedo told Plaintiff that Officer Theresa told him that Plaintiff did not have anything. (Id. ¶ 25.) Plaintiff contends that these actions are retaliation.

Plaintiff's allegations do not state a cognizable claim against Plighting, Salcedo, or Theresa. Plaintiff fails to allege that any of these officers took an adverse action against Plaintiff in violation of Plaintiff's First Amendment rights.*fn2 Based on the allegations, Plighting informed Plaintiff that he had heard Plaintiff did not have anything coming regarding a court call. This is not sufficient to state an adverse action against Plaintiff, as Plighting only informed Plaintiff of what he knew regarding Plaintiff's court call. Officer Salcedo allegedly called Litigation Officer Theresa to verify whether Plaintiff had any court call to make. This is also not sufficient to state a retaliation claim, as it appears both Salcedo and Officer Theresa undertook efforts to determine if Plaintiff had a court call. Plaintiff fails to allege any adverse action taken by these officers. The Court finds that granting Plaintiff's request to amend his pleadings would be futile because the proposed amended complaint fails to state any other cognizable claims against any other defendants.

Based on the foregoing, it is HEREBY ORDERED that Plaintiff's objections, filed on December 2, 2009, are DENIED, and Plaintiff's request for leave to file an amended complaint is denied.


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