United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se. The instant action
proceeds on claims that, following his transfer to High
Desert State Prison (“HDSP”) on March 18, 2014,
defendants Dr. Windsor, Dr. Lankford, Dr. Lee and T. Mahoney
were deliberately indifferent to plaintiff's serious
medical needs in violation of the Eighth Amendment, in
connection with plaintiff's pain management in lieu of
receiving further ankle surgery. Specifically, plaintiff
contends that defendants' decision to change his pain
medication was made for non-medical reasons, based on a
policy at HDSP that no inmate would be prescribed methadone
or morphine. Plaintiff seeks leave to amend his complaint to
add two new defendants. Plaintiff also moves to supplement
his pleading to add new claims as to five new defendants, two
named as John Does. As set forth below, the undersigned
recommends that plaintiff's motions be denied.
was granted leave to amend to include his current allegations
against defendants Dr. Windsor, Dr. Lankford, Dr. Lee and T.
Mahoney, but also include his proposed claims against Dr.
Swingle in connection with the alleged failure to correct the
deficiencies plaintiff brought to Dr. Swingle's attention
through the grievance process, based solely on
plaintiff's claim that he was denied adequate pain
medication based on HDSP policy, and that the second surgery
for his left ankle was inappropriately delayed. (ECF No. 43
at 7.) Plaintiff was also granted leave to file a
motion to amend to include claims as to T. Murray, but only
if plaintiff could demonstrate that such allegations arise
from the instant claims and not from new incidents that took
place after the instant action was filed on March 9, 2015.
(ECF No. 43 at 7.)
was also required to file a motion to amend specifically
addressing the factors required under Foman v.
Davis, 371 U.S. 178, 182 (1962). (ECF No. 43 at 8.)
Plaintiff was granted thirty days in which to file a motion
to amend, accompanied by a proposed amended complaint. (ECF
No. 43 at 8.) The deadline for filing motions to amend was
set for October 11, 2016. (Id.)
September 16, 2016, plaintiff filed a proposed amended
complaint. (ECF No. 45.) Defendants filed an opposition, and
plaintiff filed a reply. (ECF Nos. 47, 48.) Plaintiff seeks
to add two new defendants, Dr. Swingle and CEO Murry, both of
whom addressed grievances concerning plaintiff's medical
care for pain remaining at issue here.
the court notes that plaintiff again failed to follow the
court's direction. Plaintiff did not file a motion to
amend with his proposed pleading, and therefore did not
separately address the Foman factors in a separate
motion as required, depriving defendants an opportunity to
rebut the factors he finally addressed in his reply.
defendants have filed an answer, Rule 15(a)(2) governs
plaintiff's motion to amend, as follows:
(2) Other Amendments. In all other cases, a party
may amend its pleading only with the opposing party's
written consent or the court's leave. The court should
freely give leave when justice so requires.
Fed. R. Civ. P. 15(a)(2). “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)); accord Sonoma Cnty.
Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d
1109, 1117 (9th Cir. 2013). 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.”
AmerisourceBergen Corp., 465 F.3d at 951; accord
Sonoma Cnty. Ass'n of Retired Emps., 708 F.3d at
1117. “‘[P]rejudice to the opposing party carries
the greatest weight.'” Sonoma Cnty. Ass'n
of Retired Emps., 708 F.3d at 1117 (quoting Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003) (per curiam)). Leave to amend “is properly
denied . . . if amendment would be futile.” Carrico
v. City and Cnty. of San Francisco, 656 F.3d 1002, 1008
(9th Cir. 2011) (citing Gordon v. City of Oakland,
627 F.3d 1092, 1094 (9th Cir. 2010)). Further, “[a]
party cannot amend pleadings to ‘directly contradict an
earlier assertion made in the same proceeding.'”
Air Aromatics, LLC v. Opinion Victoria's Secret
Stores Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir.
2014) (quoting Russell v. Rolfs, 893 F.2d 1033, 1037
(9th Cir. 1990)).
first of the four relevant factors, bad faith, weighs
moderately against granting leave to amend. Where a party
“[f]acing a summary judgment motion . . . s[eeks] to
amend its complaint to add causes of action on which
discovery had not been undertaken, ” that fact
“might reflect bad-faith on the part of the”
moving party. Lockheed Martin Corp. v. Network Solutions,
Inc., 194 F.3d 980, 986 (9th Cir. 1999); see
William W. Schwarzer, A. Wallace Tashima & James M.
Wagstaff, Cal. Prac. Guide: Fed. Civ. Proc. Before
Trial ¶¶ 8:1511-12 (The Rutter Group 2014)
(explaining that when the plaintiff “has had adequate
opportunity for discovery and defendant's motion for
summary judgment is pending, leave to amend may be denied
unless plaintiff can produce ‘substantial and
convincing evidence' supporting the proposed
amendment” due to the possibility that the plaintiff
“may simply be maneuvering to stave off dismissal of
the case”) (quoting Cowen v. Bank United of Texas,
FSB, 70 F.3d 937, 944 (7th Cir. 1995) and citing
Parish v. Frazier, 195 F.3d 761, 764 (5th Cir.
1999); Somascan, Inc. v. Philips Med. Systems Nederland,
B.V., 714 F.3d 62, 64 (1st Cir. 2013)).
discovery has been taken on plaintiff's proposed claims
against Dr. Swingle and CEO Murray. Discovery closed on July
29, 2016, months before plaintiff submitted the proposed
amended complaint on September 16, 2016. Moreover, in his
proposed amended complaint signed under penalty of perjury,
plaintiff claims that once his appeal as to Dr. Swingle was
totally exhausted (April 29, 2015), he “immediately
sought to amend Dr. Swingle to his original complaint.”
(ECF No. 45 at 3:17-20.) But plaintiff's first motion to
amend was not filed until May 6, 2016, and did not include
his proposed claims against Dr. Swingle or CEO Murray.
Plaintiff did not file a motion to amend as to Dr. Swingle
and CEO Murray until June 23, 2016, and failed to submit a
proposed pleading including such claims until September 16,
2016. Moreover, as pointed out by defendants, plaintiff was
aware of his claims against Dr. ...