United States District Court, N.D. California
ORDER DENYING MOTIONS FOR LEAVE TO AMEND AND FOR APPOINTMENT OF COUNSEL AND DIRECTING SERVICE OF EIGHTH AMENDMENT CLAIM
CLAUDIA WILKEN, District Judge.
On March 22, 2011, the Court dismissed Ricky Gonzales' pro se prisoner civil rights action because nineteen of his twenty asserted claims were barred by the doctrine of res judicata and he lacked standing to assert the twentieth claim. See Doc. no. 13. Plaintiff appealed. The Ninth Circuit affirmed in part, reversed in part and remanded, holding that Plaintiff had standing to assert a debriefing claim. The Court allowed Plaintiff to file an amended complaint to assert the debriefing claim and one additional claim. In the amended complaint, Plaintiff asserted an Eighth Amendment claim that his indefinite and long-term placement in the security housing unit (SHU) violates his Eighth Amendment right to be free of cruel and unusual punishment and a Fourteenth Amendment claim that that the absence of adequate periodic reviews of his retention in the SHU violates his right to due process. Plaintiff sought declaratory and injunctive relief against four Defendants sued in their official capacities.
In a September 11, 2014 Order of Dismissal, the Court found that Plaintiff's allegations and prayers for relief were almost identical to the allegations and prayers for relief in the certified class action lawsuit, Ashker v. Brown, C 09-5796 CW (PR). The Court dismissed Plaintiff's claims because he "is in the plaintiff class in a pending class action in which the same claims are alleged and the same relief is requested" and his requests for relief must be pursued through the Ashker class action litigation. See Doc. no. 30 at 3-4.
On September 25, 2014, Plaintiff filed a motion for reconsideration arguing that he is not a member of the Eighth Amendment class in the Ashker litigation because he has been confined in the SHU for seven years and members of the Ashker class are required to have been confined in the SHU for at least ten years. See Doc. no. 32. On September 29, 2014, the Court granted the motion for reconsideration and vacated the dismissal of Plaintiff's Eighth Amendment claim; it did not vacate the dismissal of Plaintiff's due process claim. See Doc. no. 36.
On October 16, 2014, Plaintiff filed motions for leave to file a second amended complaint (SAC) and for the appointment of counsel. For the reasons stated below, these motions are denied and the Court orders service of Plaintiff's Eighth Amendment claim.
I. Motion for Leave to File Second Amended Complaint
Plaintiff seeks leave to file a SAC to "salvage at least some portions of his due process claim that fall completely outside the class action due process claim which Plaintiff concedes, as the court notes, that I am a class member of." Plaintiff cites specific paragraphs in his first amended complaint that he would delete in a SAC that would allegedly remove him from the Ashker class action due process claim.
Although Plaintiff characterizes this as a motion to amend his complaint, the Court construes it as a second motion to reconsider the previous order dismissing his Fourteenth Amendment due process claim. A motion for reconsideration under Rule 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the law.'" McDowell v. Calderon , 197 F.3d 1253, 1255 (9th Cir. 1999) (citation omitted) (en banc). Plaintiff could have proposed amending his complaint in his first motion for reconsideration, but he did not. Plaintiff submits no grounds in this motion, that is, no newly discovered evidence, intervening change in the law or clear error by the Court, which would warrant reconsideration. Therefore, the motion for reconsideration is denied.
Furthermore, even as a motion for leave to file a SAC, the motion is denied. Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint should be "freely given when justice so requires." Fed.R.Civ.P. 15(a)(2). "Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment." Ditto v. McCurdy , 510 F.3d 1070, 1079 (9th Cir. 2007) (citations and internal quotation marks omitted). The decision to grant or deny a request for leave to amend rests in the discretion of the trial court. California v. Neville Chem. Co. , 358 F.3d 661, 673 (9th Cir. 2004).
Plaintiff's amendment would be futile because the changes he proposes are so de minimis that the amended due process claim would not exclude him from the Ashker due process class. Plaintiff proposes to retain the following allegations in an SAC that he argues are not in the Ashker complaint: (1) inadequate notice provided to inmates when evidence is obtained regarding gang membership; (2) inability to investigate gang charges due to inmates' placement in solitary confinement in the SHU; and (3) inmates' inability to call witnesses at gang validation reviews. Two other allegations Plaintiff would retain in an SAC pertain to the "improper" burden of proof required at validation reviews and insufficient written dispositions of those reviews.
As noted in the Court's Order of Dismissal, Plaintiff's specific requests for relief are subsumed in the more general prayer for relief in Ashker, which seeks a declaration that the policies and practices of confining prisoners in the Pelican Bay SHU violate the Fourteenth Amendment. See Doc. no. 30 at 3. This is also true of the allegations Plaintiff proposes for an SAC. Although the allegations may not be specified in the Ashker amended complaint, they are subsumed in Ashker's general allegations of lack of due process. Accordingly, Plaintiff's motion for leave to file a SAC is denied.
II. Motion to Appoint Counsel
Plaintiff moves for the appointment of counsel; he specifically requests appointment of the attorneys who are litigating the Ashker v. Brown class action. He states that "appointment of counsel will insure that my action is ...