United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. On August 11, 2014, defendants Duffy and Payan filed a motion to dismiss plaintiff's original complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 18.) On August 22, 2014, plaintiff filed a motion for an extension of time to file a first amended complaint. (ECF No. 19). On September 4, 2014, plaintiff filed a first amended complaint. (ECF No. 23.) On October 20, 2014, plaintiff filed a motion for leave to file a second amended complaint and a proposed second amended complaint. (ECF No. 25.) On November 10, 2014, defendants filed an opposition to this motion. (ECF No. 26.)
Because plaintiff has filed a proposed second amended complaint, plaintiff's motion for an extension of time to file the first amended complaint is denied as unnecessary. Similarly, because plaintiff has filed a proposed second amended complaint, defendants' motion to dismiss the original complaint is vacated.
Plaintiff's second amended complaint may only proceed with defendants' consent or the court's leave. Fed.R.Civ.P. 15(a)(2). For the reasons discussed herein, the undersigned recommends that plaintiff's motion to file the second amended complaint be granted in part and denied in part.
Second Amended Complaint
Named as defendants in the second amended complaint are defendants Warden Duffy and Correctional Case Records Supervisor Payan. (ECF No. 23 at 5.) In his first claim, plaintiff alleges that the abstract of judgment and minute order issued in his criminal case incorrectly state that he was ordered to pay restitution. Based on this allegation, plaintiff alleges that defendants wrongfully withdrew money from his trust account to pay the restitution. In his second claim, plaintiff also alleges that defendants did not properly calculate the filing fee payments he owed in a case filed in this court, 2: 06-cv-886.
Standard for Considering Motion for Leave to Amend
Under Fed.R.Civ.P. 15(a)(2), the court "should freely give leave [to amend] when justice so requires." To determine whether to grant leave to amend, the court considers five factors: "(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint." Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003) (citations omitted). "Futility alone can justify the denial of a motion for leave to amend, " id., and prejudice to the opposing party "carries the greatest weight." Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Delay alone, however, will not justify denying leave to amend. DCD Progs., Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987); see also United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981) ("The mere fact that an amendment is offered late in the case... is not enough to bar it."). All inferences are drawn "in favor of granting the motion." Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). "[T]he nonmoving party bears the burden of demonstrating why leave to amend should not be granted." Genentech, Inc. v. Abbott Labs., 127 F.R.D. 529, 530-31 (N.D.Cal. 1989).
Plaintiff alleges that defendants wrongly withdrew money from his trust account to pay a restitution fee, although no such fee was ordered in his criminal case. In particular, plaintiff alleges that in 2012, he discovered that defendants were deducting money from his trust account for restitution payments and for administrative fees. (ECF No. 23 at 6.) Plaintiff alleges that the transcript from his sentencing hearing shows that the trial court did not order him to pay restitution or administrative fees. (Id. at 9.) Plaintiff alleges that defendants violated state and federal law by charging him for the restitution fees.
Plaintiff's request for judicial notice, filed in support of the second amended complaint, contains the transcript from plaintiff's September 10, 1997 sentencing. At this hearing, the trial court did not order plaintiff to pay restitution. (ECF No. 24 at 12-14.) However, the abstract of judgment, signed by the court clerk, states that plaintiff was ordered to pay $200 in restitution pursuant to California Penal Code § 1202.4(B). (Id. at 17.) The minute order from plaintiff's sentencing also reflects that plaintiff was ordered to pay $200 in restitution pursuant to California Penal Code § 1202.4(B). (Id. at 18.)
In the opposition, defendants argue that the court should deny plaintiff's motion to amend to include his claim alleging the improper withdrawal of money to pay for restitution on grounds that amendment is futile. For the reasons stated herein, the undersigned agrees.
Plaintiff is alleging that defendants' removal of money from his prison trust account to pay restitution was not authorized because the trial court did not order restitution. The United States Supreme Court has held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984); cf. Daniels v. Williams, 474 U.S. 327 (1986) (prisoner alleging lack of due care by state officials failed to state a due process claim because negligence does not "deprive" an individual of life, ...