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Timothy Bertram v. C. Sizelove

April 10, 2012



Findings and Recommendations

I. Procedural History

On April 5, 2010, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On November 22, 2010, the Court dismissed certain claims and found a cognizable claims against Defendants C. Sizelove and J. Heinzler and two Doe Defendants ("Defendants") for Eighth Amendment deliberate indifference to medical needs. Doc. 13. The Court dismissed, with prejudice, Plaintiff's claims of receiving a cold shower; First Amendment retaliation; and return of personal property. Id. On August 2, 2011, the Court issued a discovery and scheduling order, establishing a deadline of February 2, 2012 to amend pleadings, a discovery deadline of April 2, 2012, and a dispositive motion deadline of June 11, 2012. Doc. 36.

On February 6, 2012, Plaintiff filed a motion for extension of time to amend pleadings. Doc. 56. On February 15, 2012, Plaintiff filed a proposed first amended complaint. Doc. 58. On March 19, 2012, Defendants filed an opposition to Plaintiff's motion to amend pleadings. Doc. 62. On March 30, 2012, Plaintiff filed a reply to Defendants' opposition. Doc. 65.

II. Motion to Amend Complaint

Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive pleading has been served. Therefore, Plaintiff may not file a first amended complaint without leave of court. 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); 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)); Foman v. Davis, 371 U.S. 178, 182 (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.

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, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009)).

III. Plaintiff's Proposed First Amended Complaint

A. Screening Standard

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 129 S. Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

While prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, Plaintiff must demonstrate that each defendantpersonally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

B. Allegations in Plaintiff's Proposed First Amended Complaint

In Plaintiff's proposed amended complaint, Plaintiff states these actions occurred at California Correctional Institution Tehachapi, California. Prop. Am. Compl. at 1, Doc. 58.*fn1 Plaintiff seeks to add defendants "Records Officer" of July 7, 2009; M. Hetzel; H. Sherwood; R. Timonen;

A. Large; J. Wood; and an unnamed correctional officer. Id. at 2-3, 6.

Plaintiff alleges that he has a long standing medical condition requiring him to be housed in a lower bunk. Id. at 3. Plaintiff signed a form for double housing but explained to staff that he required a low bunk due to medical conditions. Id. at 3-4. Plaintiff alleges H. Sherwood, M. Hetzel, and R. Timonen knew Plaintiff's medical condition. Id. at 4. Defendant Sizelove threatened Plaintiff and said he would make sure Plaintiff has nothing but problems until he is paroled. Id. This was a threat of retaliation. Id. Defendant Sizelove reviewed Plaintiff's Central File ("C-File"), so he knew Plaintiff's medical chronos and medical conditions. Id. at 5, 9. The information in Plaintiff's C-File was reviewed by Sherwood, Hetzel, and Timonen. Id. at 5. Defendant Sizelove admitted to reviewing the files and taking over Plaintiff's housing placement. Id. at 5, 9.

On July 6, 2009, the psych tech or LVN issued Plaintiff his seizure medication. Id. at 5. Plaintiff explained to the psych tech / LVN that he needed to be moved to a lower bunk because he was at risk of serious injury by falling from the top bunk to the cement floor. Id. at 5-6. An unnamed correctional officer walked away after giving Plaintiff his medication, and he did not make a comment as to if Plaintiff was going to be assigned a lower bunk. Id. at 6.

On July 7, 2009, Plaintiff went to take a shower and the water was cold. Defendant Heinzler snickered and said, "that is all I have for you." Id. at 6. No hot water and Defendant ...

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