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Crumb v. Hasselblad

United States District Court, S.D. California

May 22, 2017

FRAYNO CRUMB, CDCR #H-20376, Plaintiff,
v.
MARK HASSELBLAD, Correctional Officer, DAVID STRAYHORN, Correctional Officer; J. RAMERO, Correctional Officer; R. OLSON, Correctional Counselor II Inmate Appeals, Defendants.

          ORDER: 1) GRANTING PLAINTIFF'S MOTION TO DISMISS COMPLAINT AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [ECF No. 26] 2) DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT [ECF No. 16]; AND 3) DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT AND FOR COURT ORDER REGARDING U.S. MARSHAL SERVICE UPON DEFENDANT J. RAMERO [ECF Nos. 21, 24]

          Barry Ted Moskowitz Chief judge United States District Court

         FRAYNO CRUMB (“Plaintiff”), is currently incarcerated at Kern Valley State Prison (“KVSP”) in Delano, California, and is proceeding in pro se in this civil action filed pursuant to 42 U.S.C. § 1983. He claims Defendants Strayhorn, Hasselblad, and Ramero, all Correctional Officers at Richard J. Donovan Correctional Facility (“RJDCF”), used excessive force and refused medical treatment for his injuries while he was incarcerated there on January 27, 2015. Plaintiff further contends Defendant Olson thwarted his efforts to file an administrative complaint following the incident. (ECF No. 1 at 1-2, 10-11.)

         I. Procedural Background

         On November 11, 2016, the Court granted Plaintiff leave to proceed in forma pauperis (“IFP”), screened his Complaint (ECF No. 1) pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A, and directed the U.S. Marshal to effect service upon the Defendants pursuant to 28 U.S.C. § 1915(d) and Fed.R.Civ.P. 4(c)(3) (ECF No. 8). See Puett v. Blandford, 895 F.2d 630, 634 (9th Cir. 1990) (“An incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of summons and complaint”). The U.S. Marshal successfully executed service upon Defendants Hasselblad, Strayhorn, and Olson (ECF Nos. 11-13), but the summons was returned unexecuted as to Defendant J. Ramero on December 28, 2016 (ECF No. 10), with a note indicating that “per Litigation Coordinator, RJDCF has no employee by the name of J. Ramero.” (ECF No. 10).

         After requesting and being granted an extension of time in which to respond (ECF Nos. 14, 15), on March 14, 2017, Defendants Hasselblad, Strayhorn, and Olson filed a Motion to Dismiss portions of Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 16). Defendants served Plaintiff with a copy of their Motion via U.S. Mail on the same day (ECF No. 16-1 at 7).

         After the Court set a briefing schedule (ECF No. 17), Plaintiff requested an extension of time in which to respond (ECF No. 19). On April 12, 2017, the Court granted Plaintiff's request (ECF No. 22), and on the same day, Plaintiff filed a “Motion to Petition the Court to Order the CDCR [California Department of Corrections and Rehabilitation] to Give Forwarding Address for Correctional Officer J. Ramero” so that the U.S. Marshal may re-attempt service (ECF No. 21).

         Two days later, on April 14, 2017, Plaintiff filed a Motion for Leave to file an Amended Complaint (ECF No. 24 at 1-4), attached to which is his proposed First Amended Complaint (“FAC”) (ECF No. 24 at 5-70). Both Plaintiff's Motion to Amend, as well as his proposed FAC, were signed by him on April 7, 2017. (Id. at 2, 25.) In a separate “Declaration of Service” (ECF No. 24 at 4), Plaintiff swears under penalty of perjury to have placed his Motion and Proposed FAC in the institutional mail at KVSP on April 9, 2017. (Id. at 3.) Then, on April 26, 2017, before the Court could rule on Plaintiff's Motion to File a First Amended Complaint, and in lieu of an Opposition to Defendants' Motion to Dismiss, he filed a “Motion to Dismiss” his own original Complaint, and requesting leave to file a Second Amended Complaint (“SAC”) re-alleging his Eighth Amendment excessive force claims against Defendants Strayhorn and Hasselblad only (ECF No. 26).

         II. Plaintiff's Motions to Dismiss and For Leave to Amend

         Pursuant to Fed.R.Civ.P. 15(a), a party “may amend its pleading once as a matter of course … within 21 days after service of a motion under Rule 12(b)…” Fed.R.Civ.P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2).

         In this case, Plaintiff requires leave to amend because, even under the prison “mailbox rule, ” his Motion seeking leave to file a FAC was constructively filed on April 9, 2017-the date he placed it in the U.S. Mail at KVSP-and more than 21 days after March 14, 2017, when he was served with Defendants' Motion to Dismiss his original Complaint pursuant to Fed.R.Civ.P. 12(b)(6). See ECF No. 24 at 3; ECF No. 16-1 at 7; Houston v. Lack, 487 U.S. 266, 270-72 (1988) (notice of appeal filed by a pro se prisoner is deemed to be “filed” when it is delivered to prison authorities for forwarding to the district court); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“Houston mailbox rule applies to § 1983 suits filed by pro se prisoners.”). His most recent Motion seeking leave to file a SAC, was filed a week later-on April 16, 2017-the date he swears to have deposited it in the institutional mail at KVSP. See ECF No. 26 at 5.

         However, Rule 15(a)(2) further provides that “[t]he court should freely give leave when justice so requires, ” and “this mandate is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962) (internal quotation marks omitted); Sharkey v. O'Neal, 778 F.3d 767, 774 (9th Cir. 2015). The intent of the rule is to “facilitate decision on the merits, rather than on the pleadings or technicalities, ” Chudacoff v. Univ. Med. Center of S. Nev., 649 F.3d 1143, 1152 (9th Cir. 2011), and this policy is “to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (citation omitted).

         When evaluating a motion to amend under Rule 15, the Court considers:

(1) whether there has been undue delay, bad faith, or dilatory motive on the part ...

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