FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Now pending before the court is plaintiff's motion to amend his complaint.*fn1
Plaintiff filed a complaint and initiated this action back on November 24, 2007. (Doc. No. 1.) At that time the court screened plaintiff's complaint and found that it appeared to state cognizable claims against defendants Athanassious, Moreno, Pettigrew, Whitten, and Wyant. (Doc. No. 6.) The court also concluded, however, that the amended complaint failed to state cognizable claims against defendants Tilton, Hubbard, and Andreasen because plaintiff failed to allege facts that, if proven, would demonstrate a causal link between these supervisory personnel and any constitutional violation alleged by plaintiff in his complaint. (Id. at 2.) Plaintiff did not seek reconsideration of that order either from the undersigned or from the assigned district judge in a timely fashion.
On March 20, 2009, defendants Athanassious, Moreno, Pettigrew, Whitten, and Wyant filed a motion to dismiss. (Doc. No. 23.) On November 10, 2009, the undersigned issued findings and recommendations in this case recommending that the motion to dismiss be granted in part and denied in part. (Doc. No. 35.) Specifically, the undersigned recommended that plaintiff be allowed to proceed only with respect to his Eighth Amendment claims against defendants Athanassious and Pettigrew. (See id. at 17-18.) The undersigned recommended that defendants Moreno, Whitten, and Wyant be dismissed from this action because plaintiff failed to exhaust his administrative remedies prior to filing suit against these defendants. (Id. at 11-14.) On January 26, 2010, the district judge assigned to this case adopted these findings and recommendations in full. (Doc. No. 40.)
On March 3, 2010, the court entered a discovery order in this action. (Doc. No. 42.) One month later, on April 19, 2010, plaintiff filed the pending motion to amend his complaint. (Doc. Nos. 44 & 45.)
PLAINTIFF'S MOTION TO AMEND HIS COMPLAINT
In his motion, plaintiff argues that his proposed amended complaint is easier to read and presents his claims more clearly against defendants Andreasen, Wyant, Whitten, Pettigrew, and Moreno. (Mot. at 2.) Plaintiff also contends that the proposed amended complaint asserts two new tort claims under California law. (Id.) Specifically, plaintiff seeks leave to amend to add a medical malpractice claim against defendant Athanassious and a personal injury claim against defendant Pettigrew.
II. Defendants' Opposition
In their opposition, defendants argue that plaintiff's motion should be denied because his proposed amended complaint names defendants who have already been dismissed from this action. (Id. at 1-2.) In this regard, defendants argue that the proposed amended complaint fails to allege any new facts or circumstances that would warrant the insertion of defendants Andreasen, Tilton, Hubbard, Moreno, Whitten, or Wyant back into this litigation. (Id.)
Defendants also argue that plaintiff's proposed amendment of his complaint to include two new state claims would be futile. (Id. at 4.) Defendants contend that under the California Tort Claims Act, a claim must be filed with the Victim Compensation and Government Claims Board prior to suing a state employee for damages in court. (Id. at 4-5.) Defendants' note that plaintiff has failed to allege in his proposed amended complaint that he has complied with that filing requirement. (Id. at 5.) Therefore, according to defendants, the proposed amended complaint fails to state a cognizable claim under state law. (Id.)
In reply, plaintiff asserts that he was unable to adequately oppose defendants' March 20, 2009 motion to dismiss because at the time, he was heavily medicated and relied on another mental patient to draft his opposition to defendants' motion. (Reply at 4.) Plaintiff argues that he seeks to reinsert defendants Moreno, Whitten, and Wyant back into this case because he has recently discovered the Eleventh Circuit decision in Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), which may provide a legal basis for excusing his failure to exhaust administrative remedies against these defendants prior to filing suit. (Id. at 3-4.) In that case, according to plaintiff, a prisoner was excused from his failure to exhaust because prison officials had threatened to retaliate against him for filing grievances. (Id. at 3.)
Next, plaintiff attempts to clarify the allegations against defendants Tilton and Hubbard set forth in his proposed amended complaint. Plaintiff explains that he is suing these defendants only in their official capacities and for their failure to ...