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Ricks v. C. Kamena

United States District Court, E.D. California

November 7, 2017

SCOTT K. RICKS, Plaintiff,
v.
KAMENA, et al, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO AMEND (ECF NO. 33) ORDER DIRECTING PLAINTIFF TO FILE OPPOSITION OR STATEMENT OF NON-OPPOSITION TO MOTION FOR SUMMARY JUDGMENT(ECF NO. 32) THIRTY (30) DAY DEADLINE

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Scott K. Ricks (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Kamena for failure to protect Plaintiff from his cellmate's attack on January 13, 2014, and for deliberate indifference to his serious medical need following the attack. (ECF No. 18.)

         I. Procedural Background

         On February 24, 2017, Plaintiff filed a motion to amend the complaint solely with respect to damages. (ECF No. 24.) The Court granted the motion on April 19, 2017, and directed Plaintiff to file an amended complaint limited to the revision of his damages claim. (ECF No. 25.) Plaintiff failed to timely file an amended complaint. On June 6, 2017, the Court issued an order to show cause why this action should not be dismissed for failure to obey a court order and failure to prosecute. (ECF No. 26.)

         On June 20, 2017, Plaintiff filed a motion to continue proceedings, stating that he believed he did not need to file an amended complaint because Defendant's counsel was aware of his timely motion to amend solely the amount of damages. In addition, Plaintiff stated that his institution refused to provide him with legal materials or access to the law library. (ECF No. 27.) The Court discharged the order to show cause and directed Defendant Kamena to file a response. (ECF No. 28.)

         Counsel for Defendant filed a declaration on July 10, 2017, stating that he made no representation to Plaintiff that his acknowledgment of the motion to amend was a substitute for compliance with the Court's order. (ECF No. 29.) Defense counsel further stated that he was informed that Plaintiff had full access to his legal property, had received indigent supplies twice in June 2017, had attended law library on approximately a dozen occasions, and did not attend on approximately a dozen other dates in the same time period. (Id.) Plaintiff did not file a reply.

         The Court granted Plaintiff a final opportunity to file a first amended complaint or to affirmatively notify the Court that he wished to proceed only on the damages pled in the complaint filed on May 8, 2015. (ECF No. 30.)

         Upon Plaintiff's failure to file a first amended complaint or a response, on September 11, 2017, the Court ordered that this action proceed only on the cognizable claims and damages pled in the original complaint filed on May 8, 2015. (ECF No. 31.)

         On October 2, 2017, Defendant Kamena filed a motion for summary judgment on the grounds that Plaintiff's failure to protect and deliberate indifference to medical treatment claims are unsupported by any admissible evidence, and Defendant Kamena is entitled to qualified immunity. (ECF No. 32.) Plaintiff's opposition was due on or before October 26, 2017.

         On October 6, 2017, Plaintiff filed the instant motion to amend pleadings without having to file an amended complaint. (ECF No. 33.) Defendant filed an opposition on October 19, 2017. (ECF No. 34.) Plaintiff did not file a reply, and the deadline to file a reply has expired. The motion is deemed submitted. Local Rule 230(1).

         II. Motion to Amend

         In his renewed motion to amend, Plaintiff again asserts his institution refuses to provide him with the legal supplies needed to litigate this action. Plaintiff states that in the twenty months he has been housed at Salinas Valley State Prison, he has been issued exactly two used pens and exactly thirty pages of blank typing paper. In addition, Plaintiff again states that the facility law library does not contain any legal print materials, and only provides duplication services, a stapler, and legal mailing envelopes. Plaintiff argues that it is impossible for him to file an amended complaint. (ECF No. 33.)

         In opposition, Defendant argues that Plaintiff has not demonstrated good cause sufficient to explain his failure to comply, for six months, with the Court's order granting leave to amend. In addition, Defendant argues that there is strong evidence of bad faith given that Plaintiff's motion to amend was filed four days after Defendant's motion for summary judgment, and the granting of leave to amend at this time would be prejudicial. (ECF No. 34.)

         A. ...


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