The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING PLAINTIFF'S MOTION TO AMEND (Doc. 120.)
THIRTY DAY DEADLINE TO FILE THIRD AMENDED COMPLAINT AS INSTRUCTED
BY THIS ORDER
Sergio Alejandro Gamez ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 1, 2008. (Doc. 1.)
On September 1, 2011, the Court granted Defendants' motion for summary judgment and entered judgment in favor of Defendants, closing this action. (Docs. 109, 110.) On September 16, 2011, Plaintiff filed a notice of appeal to the Ninth Circuit. (Doc. 111.)
On July 25, 2012, the Ninth Circuit affirmed in part and vacated in part the district court's judgment, and remanded the case to the district court. (Doc. 116.) The Ninth Circuit affirmed the district court's dismissal of Plaintiff's equal protection "class of one" claims and the district court's decision to grant summary judgment to Defendants on Plaintiff's contentions that his due process rights were violated by the failure to review his gang status prior to 2009. (Doc. 116 at 1-2.) However, the Ninth Circuit found a genuine dispute of material fact as to whether the evidence used by Defendants in support of Gamez's 2010 re-validation had "sufficient indicia of reliability" to meet the "some evidence" standard as required to satisfy due process. (Id. at 2.) The Court vacated the district court's summary judgment on Plaintiff's due process claims relating to his re-validation as a prison gang associate and remanded for further proceedings. (Id. at 3.) The Court also vacated the dismissal of Plaintiff's retaliation claim associated with the 2010 re-validation and remanded for the district court to consider the claim in the first instance. (Id. at 3.) On July 25, 2012, the case was reopened at the district court. On November 23, 2012, the Ninth Circuit entered the formal mandate for the July 25, 2012 judgment. (Doc. 125.)
This action now proceeds on Plaintiff's Second Amended Complaint filed on April 1, 2009, against defendants F. Gonzalez (Warden, CCI), Captain S. Wright, N. Grannis (Chief of Inmate Appeals), K. Berkeler (Senior Special Agent), K. J. Allen (Appeals Examiner), M. Carrasco (Associate Warden, CCI), Lieutenant J. Gentry, and K. Sampson (Appeals Coordinator), on Plaintiff's due process claims concerning his 2010 re-validation as a gang associate, and Plaintiff's retaliation claims associated with the 2010 re-validation. (Doc. 116.)
On October 30, 2012, Plaintiff filed a motion for leave to amend the complaint and conduct further discovery. (Doc. 120.) On November 13, 2012, Defendants filed a response indicating they have no objection to Plaintiff's motion. (Doc. 121.)
II. MOTION TO AMEND -- RULE 15
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, Defendants have consented to amendment. Therefore, the motion to amend is granted.
Plaintiff seeks to amend the complaint to add two new parties, G. Adame (Assistant Institutional Gang Investigator at CCI) and D. Jakabosky (Special Agent - Special Service Unit at Sacramento). Plaintiff argues that these two defendants are indispensable parties under Fed. R. Civ. P. 19, in light of the Ninth Circuit's decision that Plaintiff's case shall proceed on two new issues that were not part of the Second Amended Complaint but arose after discovery proceedings. Plaintiff also requests that discovery be re-opened for the parties to conduct discovery concerning the new issues.
Plaintiff correctly asserts that the Ninth Circuit remanded this action for the district court to consider two new issues which were not present in the Second Amended Complaint: (1) Plaintiff's "due process claims concerning his 2010 re-validation as a gang associate," and (2) Plaintiff's "retaliation claims associated with the 2010 re-validation." (Doc. 116 at 4.) Plaintiff shall be provided thirty days in which to file a Third Amended Complaint addressing these two new issues.
Plaintiff is advised that the Ninth Circuit held that Plaintiff's "equal protection 'class of one' claims were properly dismissed;" that "the district court properly granted summary judgment to defendants on Gamez's contentions that his due process rights were violated by the failure to review his gang status prior to 2009;" and that issues "relating to the district court's determination that review of [Plaintiff's] 2003 gang validation was barred by the statute of limitations [were] deemed waived." (Doc. 116 at 3, 4.) Therefore, Plaintiff should not address these prior equal protection and due process claims in the Third Amended Complaint.
Plaintiff must demonstrate in the Third Amended Complaint how the conditions complained of resulted in a deprivation of his constitutional rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). Plaintiff must set forth "sufficient factual matter . . . to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); 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, 556 U.S. at 678; Moss, 572 F.3d at ...