The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT, DIRECTING CLERK'S OFFICE TO FILE COMPLAINT, AND REQUIRING PLAINTIFF TO NOTIFY COURT REGARDING SERVICE OF PROCESS (Doc. 100)
Order on Plaintiff's Motion to Amend
Plaintiff James Lynn Wride, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 13, 2005. At the time he brought suit, Plaintiff was incarcerated at the Fresno County Jail and his allegations related to an incident on or around June 1, 2004, in which he was beaten and injured by deputies, and a second incident on July 29, 2004, in which he was moved from the medical unit of the jail to general population via wheelchair, shortly after which he fell from the middle bunk and broke his leg in five places. The Court screened Plaintiff's complaint and dismissed it, with leave to amend, on November 27, 2006, for failure to comply with Federal Rule of Civil Procedure 8(a) and for failure to properly link the parties involved to the violations at issue.
28 U.S.C. § 1915A; 28 U.S.C. § 1915(e).
Plaintiff filed a first amended complaint on January 3, 2007, and prior to it being screened by the Court, he sought leave to file a second amended complaint. Plaintiff's motion was granted and he filed a second amended complaint on October 9, 2007.
On March 20, 2008, the Court found that the second amended complaint stated cognizable claims for relief for excessive force and denial of medical care. The involved officers were unidentified and the Court ordered Plaintiff to provide information on their identities so that the United States Marshal could be directed to initiate service of process.
After obtaining several lengthy extensions of time, Plaintiff was unable to provide further information and on September 29, 2009, the Court found good cause to open discovery for the limited purpose of identifying the Doe defendants. On September 21, 2010, attorney William L. Schmidt substituted in as counsel of record for Plaintiff, and on September 23, 2010, the Court discharged its order of September 29, 2009, again opened early discovery for the limited purpose of identifying the Doe defendants, and ordered Plaintiff to file a status report on or before January 15, 2011.
On December 8, 2011, the Court approved the protective order stipulated to by Plaintiff and the County of Fresno ("County"), which was making a special appearance to facilitate limited discovery. Plaintiff filed a status report on January 21, 2011, and March 11, 2011, he filed a motion seeking leave to file a third amended complaint to add claims for violation of the Americans with Disabilities Act (ADA) and negligence under California law. The County, again making a limited special appearance, filed an opposition on March 16, 2011, and Plaintiff filed a reply on March 23, 2011. This action was reassigned to the undersigned on March 23, 2011, and for the reasons that follow, Plaintiff's motion to amend shall be granted.
Plaintiff has amended once as a matter of course and therefore, he must obtain leave of court to amend. Fed. R. Civ. P. 15(a). Rule 15 provides that "courts should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Public policy strongly encourages courts to permit amendments and the policy favoring leave to amend is applied with extreme liberality. Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008) (quotation marks omitted); also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003); Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001); Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
In determining whether to grant leave to amend, courts generally consider four factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, and (4) futility of amendment. In re Korean Airlines Co., Ltd., 642 F.3d 685, 701 (9th Cir. 2011) (citing Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)) (quotation marks omitted); also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962); Waldrip, 548 F.3d at 732; AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006); Eminence Capital, LLC, 316 F.3d at 1052. Prejudice to the opposing party carries the greatest weight, and absent prejudice, or a strong showing of any of the remaining factors, there exists a presumption in favor of granting leave to amend. Eminence Capital, LLC, 316 F.3d at 1052 (quotation marks omitted). Here, the County opposes Plaintiff's motion on the grounds that the amendments are futile, there was undue delay in bringing the motion, and there exists prejudice to the defendants.
It is well established that the Court may deny leave to amend if amendment would be futile. Nordyke v. King, 644 F.3d 776, 788 n.12 (9th Cir. 2011); Serra v. Lapin, 600 F.3d 1191, 1200 (9th Cir. 2010); Gardner v. Martino, 563 F.3d 981, 990-92 (9th Cir. 2009); Deveraturda v. Globe Aviation Security Services, 454 F.3d 1043, 1046 (9th Cir. 2006); Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004); Saul v. U.S., 928 F.2d 829, 843 (9th Cir. 1991). Evaluating whether a proposed amendment is futile requires the Court to determine whether the amendment would withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and in making this evaluation, the Court is confined to review of the proposed amended pleading. Nordyke, 644 F.3d at 788 n.12 (citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) and Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937, 1949 (2009)).
a) Failure to State a Claim
The County argues that Plaintiff's allegations do not state a claim under the ADA because his allegations do not indicate that (1) he was disabled within the meaning of the statute, (2) he was denied the benefits of any services, programs, or activities based on his disability, or (3) anyone acted with deliberate indifference. In reply, Plaintiff contends that he has alleged the injuries he sustained in the beating resulted in his need for a wheelchair and that he continues to suffer pain and require the use of a cane; the failure of the County to provide him with an accessible bunk falls within the scope of ADA-covered ...