United States District Court, E.D. California
DELBERT J. SMITH, Plaintiff,
C. HERNANDEZ, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT (ECF
NOS. 19, 22) THIRTY-DAY DEADLINE
Delbert J. Smith is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's motion for
leave to file an amended complaint.
filed the complaint in this action on August 26, 2016. (ECF
No. 1.) The Court screened Plaintiff's complaint pursuant
to 28 U.S.C. § 1915A(a), and found that it stated a
cognizable claim for excessive force in violation of the
Eighth Amendment against Defendants Hernandez, Cramer, and
Zuniga. (ECF No. 6.) On October 13, 2016, an order issued
requiring Plaintiff to either file an amended complaint or
notify the Court that he wished to proceed only on those
claims that were found to be cognizable. (Id.) On
October 26, 2016 an order issued directing service on
Defendants Hernandez, Cramer, and Zuniga and dismissing all
other claims and defendants from this action. (ECF No. 8.)
Hernandez, Cramer, and Zuniga were served with the complaint
and filed an answer on January 31, 2017. (ECF Nos. 14, 16.)
On February 1, 2017, the discovery and scheduling order
issued setting the pretrial deadlines in this action. (ECF
No. 17.) On February 13, 2017, Plaintiff filed a motion to
amend his complaint and a first amended complaint was lodged.
(ECF Nos. 18, 19.) On February 24, 2017, Defendants filed an
opposition to the motion to amend the complaint. (ECF No.
FOR LEAVE TO AMEND
brings his motion for leave to amend stating that although
the Court found his excessive force claims to be cognizable,
after receiving help from other prisoners, he realizes he did
not plead unlawful intent by the defendants in his complaint.
Plaintiff seeks to amend his complaint to correct his
perceived deficiencies in the complaint.
oppose the motion on the ground that Plaintiff has added new
claims related to denials of water, food, and medical without
identifying the specific defendant's actions related to
these claims. Defendants contend that since Plaintiff has
failed to allege any additional claims, leave to amend the
complaint should be denied on the ground of futility.
Legal Standard for Granting Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend the party's pleading once as a matter of course
at any time before a responsive pleading is served.
Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend only by
leave of the court or by written consent of the adverse
party, and leave shall be freely given when justice so
requires. Fed.R.Civ.P. 15(a)(2).
determining whether to exercise its discretion to grant leave
to amend, the court considers five factors: “(1) bad
faith; (2) undue delay; (3) prejudice to the opposing party;
(4) futility of amendment; and (5) whether the plaintiff has
previously amended his complaint.” Nunes v.
Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); Serra
v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010). The
factors are not given equal weight and futility alone is
sufficient to justify the denial of a motion to amend.
Washington v. Lowe's HIW Inc., 75 F.Supp.3d
1240, 1245 (N.D. Cal. 2014), appeal dismissed (Feb. 25,
2015). “[I]t is the consideration of prejudice to the
opposing party that carries the greatest weight.”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003). “Absent prejudice, or a
strong showing of any of the remaining [ ] factors, there
exists a presumption under Rule 15(a) in favor of granting
leave to amend.” Id.; see also Griggs v.
Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999)
(the analysis should be performed with all inferences in
favor of granting leave to amend).
Allegations in First Amended Complaint
is an African-American inmate in the custody of the
California Department of Corrections and Rehabilitation.
(First Am. Compl. (“FAC”) ¶ 1, ECF No. 19.)
At the time of the incidents alleged in the complaint,
Plaintiff was housed at the California Correctional
Institute, Tehachapi (“CCI Tehachapi”). (FAC
March 1, 2016, Plaintiff was placed in an administrative
segregation housing unit with a broken hand after a fight
with a Sureno gang member. (FAC ¶ 1.) After hours of
crying “Man Down” to get medical attention,
Plaintiff was handcuffed by a group of Hispanic correctional
officers and taken to the sally-port where he was kicked and
beaten while in handcuffs, thrown back into his cell, and
told not to tell about the beating or he would be beaten
again. (FAC ¶ 2.) Officer C. Hernandez, who was the
primary officer who beat Plaintiff, called him a “black
nigger” before putting Plaintiff back in handcuffs.
(FAC ¶ 2.) There were four other officers who
participated in beating and kicking Plaintiff while he was
handcuffed and on the ground. (FAC ¶ 2.)
remained in his cell for the next five hours crying out for
help continuously. (FAC ¶ 3.) Plaintiff was again
handcuffed, taken across the yard, and without any
provocation on Plaintiff's part, he was told to stop
resisting. (FAC ¶ 3.) Plaintiff was placed in a
chokehold, thrown on the ground, and beaten with batons by
Officer Zuniga and other officers. (FAC ¶ 3.)
Plaintiff's teeth were broken and he received bloody
flesh wounds and has scarring on his back and bicep from ...