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Atcherley v. Clark

United States District Court, E.D. California

January 16, 2015

WILLIAM ATCHERLEY, Plaintiff,
v.
EDGAR CLARK, et al., Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

DENNIS L. BECK, Magistrate Judge.

Plaintiff William Atcherley ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 28 U.S.C. ยง 1983.

This action is proceeding on Plaintiff's Second Amended Complaint, filed on October 14, 2014, for violation of the Eighth Amendment and negligence against numerous Defendants. None of the newly-named Defendants have appeared in this action.

Discovery is closed, though there are numerous discovery motions pending.

Defendants have also filed motions for summary judgment, though two of the three motions have been stayed pending resolution of the discovery issues.

On November 24, 2014, Plaintiff filed a motion for leave to file a Third Amended Complaint. Plaintiff seeks to allege negligence and deliberate indifference claims against Dr. J. Kim and R.N. L. Montebon. Defendants Abadia, Ceballos, Borbolla, Holt, Rios, Ross, Clark and Torres opposed the motion on December 12, 2014, and Plaintiff filed his reply on December 24, 2014. The motion is suitable for decision pursuant to Local Rule 230(l).

I. LEGAL STANDARD

"Rule 15(a) is very liberal and leave to amend shall be freely given when justice so requires.'" AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)). However, courts "need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is futile." Id. The factor of "[u]ndue delay by itself... is insufficient to justify denying a motion to amend.'" Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).

II. DISCUSSION

Plaintiff moves to add negligence and deliberate indifference claims against two new treating sources - Dr. J. Kim and R.N. L. Montebon. According to Plaintiff, he discovered their roles on October 14, 2014, when he received Defendants' responses to interrogatories.

In Plaintiff's Second Amended Complaint, he alleged that Defendant Clark failed to order antibiotics after an examination on January 18, 2011. He also alleges that he never received the wheelchair ordered by Defendant Clark on the same day.

Now, Plaintiff states that he has learned the initials of individuals on a January 18, 2011, physician's order. He states that Defendant Clark did, in fact, order antibiotics, but Dr. Kim, identified from the initials "J.M.", discontinued the order shortly after it was written. He alleges that Dr. Kim should not have discontinued the order for antibiotics without interviewing or examining Plaintiff.

Similarly, Plaintiff contends that he has identified another individual who signed the same order as R.N. Montebon. He alleges that she noted both orders of Defendant Clark and Dr. Kim, and had a duty under CDCR policy to issue Plaintiff a wheelchair before releasing him back to his yard.

In opposing the motion, Defendants argue only that the amendments would be futile. To support their contention, they cite arguments and evidence presented in the pending motions for summary judgment. For example, Defendants argue that evidence presented in support of their motion for summary judgment shows that Plaintiff cannot establish that the failure to prescribe antibiotics on January 18, 2011, caused his January 28, 2011, infection. Under this theory, Defendants argue that since Dr. Kim and R.N. Montebon are alleged to have acted on January 18, 2011, Plaintiff cannot establish causation. Defendants also cite to expert ...


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