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Smith v. Albee

United States District Court, E.D. California

July 9, 2019

MICHAEL LENOIR SMITH, Plaintiff,
v.
DARREN ALBEE, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, with a civil rights action under 42 U.S.C. § 1983. Plaintiff's motion to amend is before the court. As set forth below, the undersigned recommends that plaintiff's motion to amend his complaint be denied, and his request to substitute the correct individual's name for defendant Alexander's name (ECF No. 52) is granted.

         I. Background

         Following multiple opportunities to amend, the district court confirmed that this action proceeds on plaintiff's due process claims against defendants Sgt. Alexander and the Sacramento County Sheriff's Department, and all of plaintiff's remaining claims were dismissed.[1] (ECF No. 29 at 2-3.) On April 25, 2018, service of process on defendant Alexander was returned unexecuted. In the request to opt out of the court's ADR pilot project, defense counsel stated that the Sacramento County Jail does not have an employee by the name of “Sgt. Alexander, ” which was confirmed in the county's answer. (ECF Nos. 42 at 3, 47 at 2.) On November 27, 2018, plaintiff was ordered to show cause why defendant Alexander should not be dismissed from this action. (ECF No. 45 at 2.) In his response, plaintiff recounted his effort to obtain the information through informal discovery, now served on counsel for the county, and was confident he would be able to inform the court the correct name of the sergeant for service of process. (ECF No. 46 at 3.)

         At this time, only defendant Sacramento County Sheriff's Department has appeared in this action. (ECF No. 47.)

         II. Motion to Amend

         A. The Parties' Briefing

         On January 3, 2019, plaintiff filed a two-page motion to amend his complaint.[2] Plaintiff claims he failed to explain the retaliatory acts taken against him because of due process violations resulting from the actions and inactions of defendants, and must name two additional defendants, Deputy McDaugherty and Sgt. Epperson “detailing the violations of plaintiff's constitutional rights.” (ECF No. 50 at 2.) Plaintiff also claims that he “must name additional defendant Sheriff Deputy Dawe for violations of plaintiff's constitutional rights, ” as a result of the County's “refusal to remove the attempted murder of a sheriff's deputy from the Sacramento County Main Jail Locator Card” despite plaintiff's acquittal of such charge eleven years prior. (Id.)

         In the proposed third amended complaint, plaintiff names as defendants the Sacramento County Sheriff's Department, Albee, Epperson, McDaugherty, Dawe and Sheriff Scott Jones, and claims additional First and Eighth Amendment violations. (ECF No. 51.)

         Defendant Sacramento County Sheriff's Department (hereafter “defendant”) opposes plaintiff's third attempt to amend his complaint because it is not limited to amending the name of the individual who authored the alleged false information on the locator card. Rather, plaintiff includes previously-dismissed claims, renames Albee and Jones as defendants despite their prior dismissal from this action, and attempts to add additional defendants and new claims. Defendants argue any amendment should be limited to the substitution of the correct individual for defendant Sgt. Alexander.

         Plaintiff filed a reply on February 14, 2019, but failed to sign the reply. (ECF No. 55.) On May 14, 2019, plaintiff was informed of his obligation to sign filings under Rule 11(a) of the Federal Rules of Civil Procedure, and provided 21 days in which to re-file his signed reply. (ECF No. 63.) Plaintiff was cautioned that failure to re-file his signed reply could result in an order denying the motion to amend without considering his unsigned response. (ECF No. 63 at 1.)

         Rule 11(a) requires the court to “strike an unsigned paper unless the omission is promptly corrected.” Fed.R.Civ.P. 11(a). Because plaintiff failed to timely re-file his reply bearing his signature, the reply is stricken and is not considered in ruling on plaintiff's motion to amend.

         B. Legal Standard

         Because 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 (leave to amend may also be denied based on “repeated failure to cure deficiencies by amendments previously allowed.”). “‘[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)).

         C. Discussion

         Bad Faith The first of the four relevant factors, bad faith, weighs against granting leave to amend based on plaintiff's attempt to add claims and defendants previously dismissed with prejudice from this action, as well as claims based on incidents that took place in 2002 that are time-barred on their face. By order filed March 19, 2018, the district court dismissed with prejudice plaintiff's claims based on the incidents in 2002, including his retaliation claims against defendants Albee and Jones based on their actions in 2002, adopting this court's findings that such claims were barred by the statute of limitations. (ECF No. 29 at 3, adopting ECF No. 26.) In his proposed amended pleading, plaintiff again recites allegations from 2002, and again names Albee and Jones as defendants based on their alleged actions in 2002. Such claims and defendants were dismissed with prejudice, barring plaintiff from raising them again in this action or any other federal action.

         Moreover, the district court noted that despite multiple opportunities to amend, plaintiff failed to articulate cognizable civil rights claims against other defendants following the 2013 discovery of the locator card. (ECF No. 29 at 2, citing (ECF No. 8 at 8 (failed to address all elements of a retaliation claim against Epperson); ECF No. 24 at 4, 6-7 (included laundry list of allegations based on incidents from 2002-16, but named individuals who were not involved in all of the alleged incidents, many of whom worked at different prisons; the court again provided plaintiff with the standards governing retaliation claims, as well as rules governing proper joinder of claims).) As discussed below, plaintiff's proposed amended pleading suffers many of the same defects.

         Therefore, this factor favors ...


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