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Gonzalez v. Cate

United States District Court, Eastern District of California

January 8, 2015

JOSE GONZALEZ, JR., Plaintiff,
v.
CATE, et al., Defendants.

PFINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. The court previously screened plaintiffs Second Amended Complaint ("SAC") (ECF No. 15) and found that it stated potentially cognizable Eighth Amendment claims against defendants Cate and Gower for retaining plaintiff in a secured housing unit ("SHU"), and Fourteenth Amendment due process claims against defendants Gamberg, Brackett, Marquez, and Harrison for validating plaintiff as a gang member. ECF Nos. 16, 18.

The matter is currently before the court on defendants' motion to dismiss. ECF No. 35. Plaintiff filed both an opposition to defendants' motion, ECF No. 48, and a motion for leave to amend and supplement his complaint, ECF No. 49. For the reasons that follow, it is recommended that (1) plaintiffs motion for leave to file a third amended and supplemental complaint be granted, (2) defendants' motion to dismiss be denied, and (3) plaintiff be granted leave to file a third amended complaint that complies with Local Rule 220 within thirty (30) days from the date of service of any order adopting this recommendation.

I. Plaintiffs Motion For Leave to Amend and to Supplement

Plaintiff requests leave to amend and to supplement his complaint. ECF No. 49. Each request is addressed below.

A. Leave to Amend

Plaintiff seeks leave to amend his complaint to add a request for "[compensatory damages of $100, 000 . . . against defendants Cate and Gower." See ECF No. 50 at 5. "A party desiring to change the demand for relief may do so under Rule 15(a)" of the Federal Rules of Civil Procedure.[1] 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1474 (3d ed.).[2] Rule 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier."

Here, the court directed the U.S. Marshal to serve plaintiffs second amended complaint on January 22, 2014, ECF No. 23, and defendants filed a motion to dismiss under Rule 12(b) on June 12, 2014, ECF No. 35. Plaintiff did not move to amend his complaint until August 25, 2014—more than 21 days after defendants filed their motion to dismiss. See ECF No. 49. Therefore, he may not amend as a matter of course under Rule 15(a)(1). He may, however, under Rule 15(a)(2) amend with the court's leave. The Rule makes clear that "[t]he court should freely give leave when justice so requires, " Fed.R.Civ.P. 15(a)(2), and the Ninth Circuit has directed courts to apply this policy with "extreme liberality, " DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186(9thCir. 1987).

When determining whether to grant leave to amend under Rule 15(a)(2), a court should consider the following factors: (1) undue delay, (2) bad faith, (3) futility of amendment, and (4) prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). Granting or denying leave to amend rests in the sound discretion of the trial court, and will be reversed only for abuse of discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996).

Although defendants oppose granting leave to amend, they do not argue that plaintiff has acted with bad faith or that they would be prejudiced by the proposed amendment. They do argue that "[plaintiffs] failure to add this claim sooner amounts to undue delay, " that "his claims are futile, " and that his proposed amendment cannot save his complaint. ECF No. 59 at 3, 5. First, plaintiff has not unduly delayed his request. He filed his motion to amend promptly after receiving defendants' motion to dismiss (which essentially argued that plaintiffs Eighth Amendment claim was moot because of plaintiff s failure to request monetary damages). Further, defendants articulate no prejudice from the passage of time prior to the filing of the motion. As to the futility of plaintiff s claims, the court previously screened the SAC and found that it stated potentially cognizable Eighth Amendment claims against Cate and Gower. See ECF Nos. 16, 18. Plaintiffs motion does not seek to add a new "claim" against Cate and Gower, but rather only a new demand for relief. See Federal Practice and Procedure § 1474, supra note 2. A change in the demand for relief is of no consequence to that finding.

In light of the applicable standards and having considered the relevant factors, it is clear that plaintiff must be granted leave to amend to add a request for compensatory damages against Cate and Gower.

B. Leave to Supplement

Plaintiffs motion to supplement his complaint seeks to add new claims against new defendants. ECF No. 50-1 at 2. These new claims are predicated on an allegation that T. Miner and S. Fernberg failed to follow the California Department of Corrections Operations Manual ("DOM") and, as a result, "plaintiffs release from the SHU was arbitrarily delayed." Id. at 4.

Under Rule 15(d), a court "may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." "The rule is a tool of judicial economy and convenience. Its use is therefore favored." Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988); see also San Luis & Delta-Mendota Water Authority v. U.S. Dept. of Interior, 236 F.R.D. 491, 497 (E.D. Cal. 2006) (identifying nine factors that ...


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