Merriman v. Tierney

          ORDER DENYING MOTION TO AMEND COMPLAINT AND SETTING DEADLINE FOR SERVICE

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Plaintiff, an inmate at San Quentin State Prison, seeks leave to add a new party. For the reasons set forth below, the motion is Denied.

         STATEMENT

Plaintiff Justin Merriman is serving a death sentence in San Quentin State Prison for a conviction of rape and murder. He brings this civil suit in forma pauperis, though he has retained counsel. Plaintiff alleges that in January 2009, prison officials intentionally left the cells unlocked and allowed another inmate to leave his cell, gain access to plaintiff's cell, and rape and beat him. He commenced this lawsuit against defendants, San Quentin State Prison Correctional Officers FNU Tierney, FNU Smith, and FNU Robinson and unnamed State of California employees for allegedly facilitating the incident (Third Amd. Compl. ¶¶ 2-4).^[*] Plaintiff's counsel have not yet served Officers Smith and Robinson because he has yet to obtain their first names. Plaintiff also alleges that prison officials removed funds from his inmate trust account without his consent and converted those funds for their own use. He further claims that defendants have rebuffed attempts to resolve these issues through administrative processes and have destroyed his prior complaints (id. at ¶¶ 6-7).

         PROCEDURAL HISTORY

         Plaintiff's first complaint, filed on April 15, 2015, asserted the following claims: (1) a violation of his civil rights under Section 1983; (2) intentional infliction of emotional distress; (3) breach of contract; and (4) conversion. The case was initially assigned to Magistrate Judge Maria-Elena James, who issued a report and recommendation dismissing plaintiff's initial complaint on the grounds that the statute of limitations had run, he had failed to plead facts sufficient to demonstrate that he was entitled to equitable tolling, and he had failed to state claims for relief (Dkt. Nos. 6, 12). The Court adopted the proposed order and the prior complaint was dismissed with leave to amend.

         Then plaintiff filed a first amended complaint three days before the first case management conference - at which neither defendant nor plaintiff's counsel appeared.

         Because plaintiff is a prisoner bringing a civil suit in forma pauperis, the complaint was subject to a mandatory sua sponte review subject to dismissal if the complaint was frivolous, malicious, failed to state a claim, or sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2). Pursuant to that, the mandatory screening dismissed plaintiff's first amended complaint. The initial complaint named defendants Governor Jerry Brown and Warden Ron Davis. The order terminated these defendants from the case because the Eleventh Amendment barred claims against Governor Brown and plaintiff failed to address Warden Davis's role in the alleged incident. The order also dismissed without prejudice the state law claims but granted leave to amend as to plaintiff's claims against Officers Smith, Tierney, and any Doe defendants.

         A second amended complaint arrived. Again, the complaint was subject to a mandatory sua sponte review pursuant to 28 U.S.C. 1915(e)(2). The order of service pre-screened the allegations in the second amended complaint and deemed the amended complaint sufficient to require a response from defendants. The second amended complaint named Officer Robinson as a defendant for the first time and again brought claims of Section 1983 violations, intentional infliction of emotional distress, breach of contract, and conversion against all of the officers.

         After various continuances, a case management conference was scheduled for February 18, 2016. Prior to this case management conference, Officer Tierney retained private counsel as substitute for his then-representation from the California Attorney General's office. The case management scheduling order referred the case to Magistrate Judge Nandor Vadas for settlement. A settlement conference was scheduled for March 8, 2016 - at which plaintiff's counsel did not appear.

         On May 10, 2016, before the deadline set by the case management order, plaintiff sought leave to add the State of California as a new defendant. After being ordered to respond by June 1, 2016, Officer Tierney's counsel filed an opposition brief with no explanation for his failure to respond within the deadline set by the case management order. The State subsequently sought leave, now granted, to file an amicus curiae brief in opposition to plaintiff's motion for leave to amend the complaint. This order now decides plaintiff's motion for leave to amend the complaint to add the State as a defendant.

         ANALYSIS

         Plaintiff asserts that he has a right to amend pursuant to FRCP 15 and FRCP 18. As an initial matter, FRCP 18 deals with joinder of claims while the instant motion only seeks to amend the complaint to add a new party. FRCP 16, which governs later motions for leave to amend, also does not apply because plaintiff moved for leave to amend within the deadline set by the case management ...