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Hammler v. Wright

United States District Court, E.D. California

August 3, 2016

ALLEN HAMMLER, Plaintiff,
v.
J. WRIGHT, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He alleges that defendant violated his rights by using excessive force against him. ECF No. 1. Five motions are now pending before the court. First, plaintiff has moved to amend his complaint. ECF No. 15. Second, defendant has moved for summary judgment on the grounds that plaintiff failed to exhaust his administrative remedies prior to bringing this suit and that his claims are Heck-barred.[2] ECF No. 17. Third, defendant has moved for a protective order staying discovery until the court rules on both of the foregoing motions. ECF No. 18. Fourth, defendant has moved to strike plaintiff’s surreply to the pending motion for summary judgment. ECF No. 31. Fifth, plaintiff has filed a motion to schedule a telephone interview with a witness. ECF No. 32. After review of the record and, for the reasons stated below, plaintiff’s motion to amend is granted, defendant’s motion to strike is granted, defendant’s motion for protective order is denied as moot, plaintiff’s motion for a telephonic interview is denied, and it is recommended that defendant’s motion for summary judgment be denied.

         I. Plaintiff’s Complaint

         Plaintiff alleges that, on October 20, 2014 and while incarcerated at High Desert State Prison, he was issued a quarterly package by the defendant. ECF No. 1 at 3. He claims that defendant illegally confiscated a bag of cereal from that package, however. Id. at 3-4. Plaintiff asked defendant to return the item, but was rebuffed with an instruction to return to his cell. Id. at 4. Plaintiff refused that instruction, asked to speak with the sergeant on duty, and seated himself on a nearby bench. Id. at 4-5. After plaintiff refused two additional instructions from defendant to return to his cell, he claims that defendant threw him on the ground and placed a knee on his neck. Id. at 5. Plaintiff claims that he never physically resisted during the altercation and that the degree of force defendant used to restrain him was excessive. Id. at 5-6.

         Thereafter, plaintiff was assessed a disciplinary violation which charged that he had risen from the bench and advanced toward defendant prior to the use of force. Id. at 6. Plaintiff disputed this version of events at his disciplinary hearing, but was nevertheless found guilty of the charges. Id. As a result, he lost ninety days credit for time served.[3] Id.

         II. Plaintiff’s Motion to Amend

         Plaintiff states that, at the time he began this action, he could not access certain relevant documents because he was housed in administrative segregation. ECF No. 15 at 2. As a result, he contends that his original complaint contains omissions which the amendment is designed to correct. Id. Defendant opposes the motion to amend based on four arguments, namely that: (1) plaintiff may not amend as a matter of course; (2) defendant would be prejudiced by the amendment; (3) amendment would be futile; and (4) amendment would cause undue delay. ECF No. 16 at 2-5. The court, after review of the proposed amendment and defendant’s arguments, concludes that leave to amend must be granted.

         Defendant is correct insofar as he argues that plaintiff cannot amend his complaint as a matter of course. Rule 15(a)(1) provides that a party may amend a pleading once as a matter of course within either twenty-one days of serving it or twenty-one days of a responsive pleading being served. Fed.R.Civ.P. 15(a)(1). Defendant filed his answer on October 26, 2015 and plaintiff did not move to amend until November 20, 2015. ECF No. 12; ECF No. 15. Nevertheless, a party may still amend with leave of the court. Fed.R.Civ.P. 15(a)(2). Rule 15(a)(2) provides that “[t]he court should freely give leave when justice so requires, ” and the Ninth Circuit has directed courts to apply this policy with “extreme liberality.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 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).

         Here, there is no indication that plaintiff, who is appearing pro se, made this filing in bad faith. Defendant argues, however, that the amendment would cause undue delay insofar as the court would be required to screen the new allegations. ECF No. 16 at 5. The amendment does not new add claims[4] or defendants, however, and the screening burden on the court is minimal. The court also disagrees that the case would be “set back weeks, if not months.” Id. Plaintiff’s excessive force claim has not undergone any meaningful, substantive change as a result of the amendment.

         Next, defendant argues that the amendment would be futile insofar as plaintiff has not advanced any facts which support a finding of excessive force. ECF No. 16 at 4. The court disagrees. Plaintiff’s allegations establish that he was in a seated position and had offered to allow himself to be restrained when defendant took him to the floor. ECF No. 14 at 6. If plaintiff’s version is taken as true, there was no reason for doing so. Plaintiff also alleges that defendant placed a knee on his back and rocked back and forth in an attempt make him squirm. Id. at 7. Again, if plaintiff’s account is true, there was no justification for doing so. Granted, these allegations are unproven, but just as in ruling on a Rule 12 (b)(6) motion the court accepts them as true in evaluating defendant’s futility argument.

         Finally, the court finds that granting plaintiff leave to amend would not prejudice defendant. Curiously, defendant claims that the amendment would require him to prepare an entirely new motion for summary judgment. Yet the amended complaint simply restates, albeit in greater detail, the same excessive force claim which the original complaint raised. The arguments advanced in the pending motion for summary judgment- that plaintiff failed to administratively exhaust this excessive force claim and that it is Heck-barred - would apply with equal measure and do not require supplementation.

         Plaintiff’s motion to amend is therefore granted and this case will proceed on the first amended complaint. ECF No. 14. For the purposes of 28 U.S.C. § 1915A(a), the court finds that the first amended complaint (like the original complaint) states a potentially cognizable Eighth Amendment excessive force claim against defendant J. Wright. See ECF No. 4.

         III. Defendant’s Motion to Strike

         As defendant correctly points out, neither the Federal Rules of Civil Procedure nor this district’s Local Rules entitle a party to a surreply as a matter of right. Instead, the Local Rules provide for a motion, a response in opposition to the motion, and a reply. See E.D. Cal. R. 230(b)-(d). The court may, in its discretion, allow a surreply “where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Hill v. England, 2005 U.S. Dist. LEXIS 29357, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005). Those circumstances are not implicated here and plaintiff did not ask the court’s permission prior to submitting his surreply. ECF No. 30. Defendant’s motion to strike is granted and the court declines to consider the content of the surreply in weighing the pending motion for summary judgment.

         IV. Plaintiff’s Motions for Telephonic Interviews

         Plaintiff has asked the court to order defense counsel or the relevant prison litigation coordinator to schedule a telephone interview with another inmate who was purportedly an eyewitness to the events giving rise to this suit. ECF No. 32 at 1; ECF No. 34 at 2. The court declines to do so at this time. Instead, as defendant correctly notes in his opposition, plaintiff may avail himself of the process provided for in California Code of Regulations, Title 15, § 3139 by which an inmate can correspond with another inmate who is housed at another unit. Plaintiff has not indicated that he has attempted to use this process and been denied.[5] If plaintiff attempts to engage in communications with his witness by following the proper procedures under § 3139(a)-(c) and is denied access or is otherwise unable to effectively communicate with his witness, and those communications are necessary to the litigation of this action, plaintiff may file another motion describing his attempts to engage in the process provided by § 3139(a)-(c), why that process failed him, and why the evidence from the witness is relevant and seeking appropriate relief.

         V. Defendant’s Motion for Summary Judgment

         A. Summary Judgment Standard

         Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.

         The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a ...


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