The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER (1) GRANTING IN PART AND
DENYING IN PART DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S SECOND AMENDED COMPLAINT [ECF NO. 29]; AND (2) DENYING
PLAINTIFF'S MOTION FOR ORDER ON DEFENDANTS MOTION TO M.D.,
DISMISS AS MOOT [ECF NO. 38]
Plaintiff Thomas Goolsby, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on November 23, 2009, against Defendants Ridge, Martinez, Sanchez, and Wilson, pursuant to 42 U.S.C. § 1983 [ECF Nos. 1, 4]. On March 24, 2010, Goolsby filed an Amended Complaint against Defendants Ridge, Martinez, and Wilson [ECF No. 5].
All three Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint [ECF No. 13]. One day after this Court issued its Report and Recommendation Granting Defendants' Motion to Dismiss Plaintiff's First Amended Complaint, the parties sought to consent to magistrate judge jurisdiction [ECF No. 21]. The district court subsequently referred the case to this Court for all proceedings [ECF No. 22]. On May 23, 2011, the Court issued an Order Granting Defendants' Motion to Dismiss Plaintiff's First Amended Complaint [ECF No. 23], which superseded the Report and Recommendation it issued on May 10, 2011. (See Order Granting Defs.' Mot. Dismiss Pl.'s First Am. Compl. 1, ECF No. 23.) Goolsby was only given leave to amend his claim that Defendants Ridge and Martinez were deliberately indifferent to Plaintiff's serious medical needs by failing to ensure that he received previously ordered medical tests. (Id. at 52-53.) Goolsby's other claims were dismissed without leave to amend. (Id.)
On June 13, 2011, Plaintiff filed a Second Amended Complaint against Defendants Ridge and Martinez [ECF No. 25].*fn1 The Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint was filed on June 23, 2011, along with a Memorandum of Points and Authorities and the Declaration of L. D. Zamora [ECF No. 29]. The Court then issued a Wyatt v. Terhune Notice advising Goolsby of Defendants' Motion to Dismiss, in part, for failing to exhaust, and giving him time to present any additional evidence demonstrating exhaustion [ECF No. 30]. On July 11, 2011, Plaintiff filed an Opposition to Motion to Dismiss with a Memorandum of Points and Authorities [ECF No. 32].*fn2 Defendants' Reply to Plaintiff's Opposition was filed on July 18, 2011 [ECF No. 34].
Also before the Court is Plaintiff's Motion for Order on Defendants' Motion to Dismiss, which was filed nunc pro tunc to February 29, 2012 [ECF No. 38].
The Court has considered Plaintiff's Second Amended Complaint, Defendants' Motion to Dismiss and attachments, Goolsby's Opposition and attachment, Defendants' Reply, and Plaintiff's Motion for Order. For the following reasons, Defendants Ridge and Martinez's Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff's Motion for Order on Defendants' Motion to Dismiss is DENIED as moot.
Goolsby is currently housed at California Correctional Institution in Tehachapi, California, but the allegations in the Second Amended Complaint arise from events that occurred while he was incarcerated at Richard J. Donovan Correctional Facility ("Donovan") between December 16, 2008, and February 11, 2009. (Second Am. Compl. 1, ECF No 25.)
The Plaintiff contends that he was transferred to Donovan from San Diego County Jail on December 16, 2008. (Id. at 3.) While housed at county jail, he was pushed down a flight of stairs; at the time, he was in waist chains and leg shackles. (Id. at 4.) Although Goolsby had a prior right shoulder tear, it had healed sufficiently that he could exercise with a good range of motion. (Id.) Doctors at county jail diagnosed Goolsby with a torn rotator cuff in his right shoulder and sprained or strained back and neck muscles as a result of the fall. (Id.) Plaintiff was given pain medication and was referred to an orthopedic surgeon. (Id.) Soon after, Goolsby was sent to the emergency room because he was vomiting blood and had a bloody stool. (Id.) Tests were conducted and Plaintiff was told that he had strictures, which are intestinal cuts. (Id.) The county jail doctors then ordered an endoscopy and colonoscopy to confirm the diagnosis and determine the extent of the damage. (Id.)
The Plaintiff contends that he was subsequently involved in an altercation with his cellmate, during which Goolsby sustained several bite wounds on his fingers; medical staff at county jail treated him with "high power antibiotics" and monitored his bite wounds. (Id. at 5.) Plaintiff alleges that he subsequently fell directly on his back, neck, and head in his cell. (Id.) Once again, Goolsby was sent to the emergency room where medical staff determined that, although he did not break his back, his back muscles were damaged. (Id.) The Plaintiff was given a neck brace and a walker for the mobility impairment caused by the fall. (Id.)
Goolsby maintains that on December 16, 2008, he arrived at Donovan with all of these injuries. (Id.) He also brought with him a neck brace, a walker, pain medication, muscle relaxants, stomach medication, as well as orders from county jail physicians for an MRI from the orthopedic surgeon, an endoscopy, and a colonoscopy. (Id.) Upon his arrival at Donovan, Plaintiff explained his injuries to the screening nurse and told her he needed to see a physician as soon as possible. (Id.) The nurse already had a list of the medical appliances, medications, and tests that were ordered while Goolsby was in county jail. (Id. at 5-6.) The nurse reviewed the list in front of Goolsby and told him, "'[Y]our not gonna get the M.R.I., and I doubt the endoscopy and colonoscopy either . . . Dr. Ridge never orders M.R.I.'s because they cost way too much. Same with the endoscopy and colonoscopy[.]'" (Id. at 6.) Plaintiff alleges that he pleaded with her and told her the tests were "vital," and the nurse said, "I'll call [Dr. Ridge] but I'm telling you he's not gonna do it." (Id.)
The nurse is alleged to have telephoned Doctor Ridge and relayed Plaintiff's injuries to him; Defendant Ridge told the nurse that he would examine Goolsby within three days. (Id.) After the call, Plaintiff argues that he asked the nurse if there was a way to ensure that he receive the previously ordered medical tests. (Id.) The nurse responded, "'It's impossable [sic], he's your treating physician, and ONLY the treating physician can order those tests. There's no way around it. He's the sole decision maker on how and when such tests could be ordered.'" (Id.) Plaintiff asserts that by December 19, 2008, he still had not been seen by Dr. Ridge and Goolsby's medication stopped, "which exasperated [sic] [his] back neck, and shoulder injuries." (Id. at 7.) The Plaintiff then filed a request for medical attention and "began to suffer." (Id.)
On December 24, 2008, Nurse T. Sheriff came to Goolsby's cell in response to the request for medical attention. (Id.) Plaintiff argues that he complained to her that his medical condition was worsening, and he again requested that the medical tests be ordered. (Id.) Nurse Sheriff informed Goolsby that he should have been seen by Dr. Ridge, and she would call the doctor immediately. (Id.) The nurse also stated that because the medical tests were not "endorsed" by Donovan staff, Dr. Ridge would likely ignore the request because of his high caseload; the doctor is known to ignore inmates until they transferred. (Id.) Plaintiff submits that he then observed Nurse Sheriff contact Ridge on the telephone and inform the doctor of Goolsby's "severe medical needs." (Id.) Plaintiff asserts that Dr. Ridge drew the conclusion that failing to treat Goolsby would cause severe pain and injury. (Id.) That same day, Plaintiff's muscle relaxant stopped with no reason or notice, causing Goolsby to be "virtually bed ridden." (Id.) As of December 30, 2008, Plaintiff still had not been examined by Dr. Ridge, and Goolsby was in "tremendous pain," so he filed another request for medical attention. (Id. at 8.)
In "late December 2008," the Plaintiff was transferred to a different housing unit in Donovan where Dr. Martinez was his new treating physician. (Id. at 8-9.) Correctional Officer Wilson allegedly told Plaintiff that only Goolsby's treating physician, Dr. Martinez, could order the walker returned. (Id. at 9.)
The Plaintiff argues that he filed another request for medical attention on January 5, 2009, "begging for a Dr. Martinez to see [Plaintiff] . . . as that's the only way [Goolsby] could get the tests ordered and walker [returned] . . . ." (Id.) On January 12, 2009, Plaintiff asserts that he was seen by two nurses, McArthur and Sanchez, who were appalled that Goolsby had not been examined yet. (Id.) Plaintiff asked about the status of his medical tests and walker, and one of the nurses stated that Dr. Martinez was the only person who could order the medical tests, and Goolsby had to see Dr. Martinez before he could order the tests. (Id.)
Plaintiff submits that Nurse Sanchez then telephoned Dr. Martinez and informed the doctor of Plaintiff's "severe and debilitating injuries." (Id.) She said that Goolsby would be seen on the next doctor line (the list of inmates seen every week). (Id. at 9-10.) Plaintiff contends that Sanchez also said, "'[D]on't count on the tests especially the MRI cause Dr. Martinez told [Sanchez] they hardly ever order one due to budgetary constraints. Same with the endoscopy and colonoscopy.'" (Id. at 10.) Sanchez also told Goolsby that Dr. Martinez asked her if Plaintiff was "'an endorsed inmate.'" (Id.) When Sanchez told Dr. Martinez that Goolsby was not, Martinez stated, "'[L]et the prison he's endorsed to deal with him.'" (Id.) Nonetheless, Nurse Sanchez promised to put Goolsby in line for a doctor visit, and she hoped the doctor would see Plaintiff. (Id.)
On January 11, 2009, Goolsby filed an "emergency (602) appeal" against the prison medical staff for ignoring Plaintiff's requests and refusing to examine him, order the medical tests and appliances, and treat Plaintiff's serious medical needs. (Id.) Goolsby argues that on January 22, 2009, he observed Dr. Martinez enter the "building." (Id.) Plaintiff wrote another inmate grievance and gave it to Correctional Officer Gamble to hand to Martinez. (Id.) In the grievance, Goolsby outlined his injuries and his need for the medical tests and appliances ordered by county jail medical staff. (See id.) Plaintiff watched Officer Gamble hand the grievance to Dr. Martinez; the doctor read it and gave it back to Gamble, who then brought it back to Goolsby. (Id.) Gamble told Plaintiff that Dr. Martinez said to him, "'I know all about Goolsby and his 602's, medical requests and complaints, but I don't deal with whiners, he's not endorsed [at Donovan] and we don't do MRIs cause they cost too much, give [the grievance] back to [Goolsby].'" (Id. at 10-11.)
Plaintiff alleges that later that morning, he asked a nurse if he was on the list to be seen by the doctor that day, and she said that he had been "scratched off by the doctor." (Id. at 11.) Goolsby was transferred from Donovan to California Correctional Institution in Tehachapi, California on February 11, 2009. (Id.)
In count one, the Plaintiff argues that Dr. Ridge was responsible for his medical care at Donovan. (Id. at 3.) Ridge improperly interfered with orders issued by the county jail doctors merely due to budget constraints and laziness. (Id. at 3, 8.) Goolsby asserts that because he was not "endorsed" to Donovan and Dr. Ridge had a heavy caseload, the doctor ignored Plaintiff's medical needs, hoping that Goolsby would go away. (Id. at 3.) Dr. Ridge ignored the Plaintiff even though two different nurses called the doctor to notify him of Goolsby's serious and degenerating condition, and Plaintiff submitted two different medical requests. (Id. at 8.) The Plaintiff argues that interfering with a previous doctor's orders for monetary and caseload reasons amounts to deliberate indifference of his serious medical needs, in a violation of the Eighth Amendment. (Id.)
In count two, Goolsby asserts Dr. Martinez was responsible for his medical care at Donovan. (Id. at 3.) Plaintiff alleges that Dr. Martinez was aware of Goolsby's serious medical needs because Plaintiff submitted numerous medical requests and also observed Nurse Sanchez telephone the doctor. (Id. at 11.) Defendant Martinez interfered with the orders from county jail doctors for medical tests for budgetary and caseload reasons. (Id.) Plaintiff also argues that Martinez refused to see him; consequently, Plaintiff could not get his walker back, in violation of Goolsby's constitutional rights. (Id.) "Dr. Martinez was the sole person who could control when and how such test[s] and medical appliances were given." (Id.)
In count three of the Second Amended Complaint, Goolsby alleges that Dr. Martinez retaliated against Plaintiff for filing requests for medical attention as well as inmate grievances by "scratching [Plaintiff] off the [doctor] line so [Goolsby] could not receive the medical care [he] so desperately needed." (Id. at 12.) According to Goolsby, this chilled his First and Eighth Amendment rights, and Dr. Martinez had no legitimate correctional goal. (Id.)
II. APPLICABLE LEGAL STANDARDS
A. Motions to Dismiss for Failure to State a Claim
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims in the complaint. See Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). "The old formula --that the complaint must not be dismissed unless it is beyond doubt without merit -- was discarded by the Bell Atlantic decision [Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007)]." Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008). A complaint must be dismissed if it does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp., 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009). This Court must accept as true all material factual allegations in the complaint, as well as reasonable inferences to be drawn from them, and must construe the complaint in the light most favorable to the plaintiff. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) (citing Karam v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).
The court does not look at whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence to support the asserted claims. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 184 (2005) (quotation omitted); see Bell Atl. Corp., 550 U.S. at 563 n.8. A dismissal under Federal Rule of Civil Procedure 12(b)(6) is generally proper only where there "is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)).
The court need not accept conclusory allegations in the complaint as true; rather, it must "examine whether [they] follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992) (citation omitted); see Halkin v. VeriFone, Inc., 11 F.3d 865, 868 (9th Cir. 1993); see also Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) ("[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged."). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In addition, when resolving a motion to dismiss for failure to state a claim, the court generally may not consider materials outside of the pleadings. Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); Jacobellis v. State Farm Fire & Cas. Co., 120 F.3d 171, 172 (9th Cir. 1997); Allarcom Pay Television Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). "The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider, 151 F.3d at 1197 n.1. This precludes consideration of "new" allegations that may be raised in a plaintiff's opposition to a motion to dismiss brought pursuant to Rule 12(b)(6). Id. (citations omitted).
"When a plaintiff has attached various exhibits to the complaint, those exhibits may be considered in determining whether dismissal [i]s proper . . . ." Parks Sch. of Bus., 51 F.3d at 1484 (citation omitted). The court may also consider documents "'whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.'" Sunrize Staging, Inc. v. Ovation Dev. Corp., 241 F. App'x 363, 365 (9th Cir. 2007) (quoting Janas v. McCracken (In re Silicon Graphics Inc. Sec. Litig.), 183 F.3d 970, 986 (9th Cir. 1999)) (alterations in original); Stone v. Writer's Guild of Am. W., Inc., 101 F.3d 1312, 1313-14 (9th Cir. 1996).
B. Standards Applicable to Pro Se Litigants
Where a plaintiff appears in propria persona in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). The rule of liberal construction is "particularly important in civil rights cases." Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving liberal interpretation to a pro se civil rights complaint, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id.; see also Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (finding conclusory allegations unsupported by facts insufficient to state a claim under § 1983). "The plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in that support the plaintiff's claim." Jones v. Cmty. Redev. Agency, 733 F.2d at 649 (internal quotation omitted).
Nevertheless, the court must give a pro se litigant leave to amend his complaint "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quotation marks and citations omitted). Thus, before a pro se civil rights complaint may be dismissed, the court must provide the plaintiff with a statement of the complaint's deficiencies. Karim-Panahi, 839 F.2d at 623-24. But where amendment of a pro se litigant's complaint would be futile, denial of leave to amend is appropriate. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).
C. Stating a Claim Under 42 U.S.C. § 1983
To state a claim under § 1983, the plaintiff must allege facts sufficient to show (1) a person acting "under color of state law" committed the conduct at issue, and (2) the conduct deprived the plaintiff of some right, privilege, or immunity protected by the Constitution or laws of the United States. 42 U.S.C.A. § 1983 (West 2003); Shah v. County of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).
These guidelines apply to Defendants' Motion to Dismiss.
III. DEFENDANTS' MOTION TO DISMISS
Doctors Ridge and Martinez move to dismiss Plaintiff's Second Amended Complaint in its entirety. (Defs.' Notice Mot. Dismiss 1, ECF No. 29.) Dr. Martinez argues that Goolsby did not exhaust the walker or retaliation claims against him. (Id. Attach. #1 Mem. P. & A. 8.) Both Ridge and Martinez contend that Plaintiff fails to state an Eighth Amendment claim against them, that they are entitled to qualified immunity, and that Goolsby fails to state a claim for injunctive relief. (Id. at 11-16.)
A. New Claims Alleged Against Defendant Martinez
Under Federal Rule of Civil Procedure 15, a party may amend its pleading once as a matter of course. Fed. R. Civ. P. 15(a). Thereafter, a party must seek leave of court or obtain written permission from the opposing party to amend again. Fed. R. Civ. P. 15(a)(2). Here, all of Goolsby's causes of action alleged in the First Amended Complaint were dismissed. (Order Granting Defs.' Mot. Dismiss Pl.'s First Am. Compl. 52-53, ECF No. 23.) The Court only granted Plaintiff leave to amend his claim concerning Defendants Ridge and Martinez's failure to ensure that the previously ordered medical tests were performed. (Id.) Each of Goolsby's other claims was dismissed without leave to amend, and he was not given leave to add new causes of action. (See id.)
In a footnote, Dr. Martinez complains that Plaintiff added two new accusations relating to Defendant's retaliation and his failure to order Goolsby's walker returned without properly seeking leave of court. (Mot. Dismiss Attach. #1 Mem. P. & A. 8 n.3, ECF No. 29.) Even so, Defendant Martinez argues at length that Goolsby failed to exhaust either assertion. (Id. at 8.) The Plaintiff insists that he properly exhausted these claims, but he does not address whether the causes of action were properly added to the Second Amended Complaint. (See Opp'n Attach. #1 Mem. P. & A. 5-6, ECF No. 32.)
Goolsby's walker claim was alleged in the First Amended Complaint and was dismissed. (Am. Compl. 11, ECF No. 5 (asserting that Defendant Martinez was deliberately indifferent to Plaintiff's serious medical needs because Dr. Martinez should have ordered Goolsby's walker returned to him).) For this reason, the Court finds that Plaintiff's walker claim was not properly included in the Second Amended Complaint. This is in contrast to the retaliation claim. There were no facts in the First Amended Complaint that could give rise to that retaliation cause of action. To that extent, Plaintiff also has alleged a new claim for retaliation without leave of court under Federal Rule of Civil Procedure 15(a).
"Although an amendment filed without leave of court, when leave is required, has no legal effect, the court has discretion to treat the amendment as properly filed if the court would have granted leave to amend had leave been sought." Taylor v. City of San Bernardino, No. EDCV 09-240-MMM (MAN), 2010 U.S. Dist. LEXIS 140060, at *19 (C.D. Cal. Oct. 12, 2010) (citing Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644-45 (D. Nev. 1995); Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCE EFB PS, 2007 U.S. Dist. LEXIS 40580, at *1 (E.D. Cal. May 21, 2007)). Indeed, the Ninth Circuit has "repeatedly stressed that the court must remain guided by 'the underlying purpose of Rule 15 . . . to facilitate decision on the merits, rather than on the pleadings or technicalities.'" Lopez, 203 F.3d at 1127 (citation omitted). Whether to give leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996).
Courts typically consider the following five factors when determining the propriety of granting leave to amend: (1) bad faith by the moving party; (2) undue delay in seeking leave to amend; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). "Prejudice to the opposing party is the most important factor." Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1996) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971)). Whether leave to amend should be granted "is not dependent on whether the amendment will add causes of action or parties." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).
Although Goolsby has not properly sought leave to amend his pleading to add a retaliation claim against Dr. Martinez, the Court will consider the cause of action if the Court would have granted Plaintiff leave to amend. See Taylor, 2010 U.S. Dist. LEXIS 140060, at *19. Likewise, even if Goolsby's walker claim should not have been included in the Second Amended Complaint, the Court will consider the claim if a motion for leave to amend would have been granted. See id. Here, there is no evidence of bad faith or undue delay as to either claim. See Johnson, 356 F.3d at 1077. The Plaintiff accused Martinez of failing to reissue a walker in the First Amended Complaint, and Goolsby submits that he learned of Dr. Martinez's retaliatory conduct only recently. (See Opp'n Attach. #1 Mem. P. & A. 6, ECF No. 32.) Further, although Plaintiff has amended his pleading twice, adding these two claims will not substantially prejudice the Defendants. See Johnson, ...