United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE.
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.
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. (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.)
time, only defendant Sacramento County Sheriff's
Department has appeared in this action. (ECF No. 47.)
Motion to Amend
The Parties' Briefing
January 3, 2019, plaintiff filed a two-page motion to amend
his complaint. 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.)
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.)
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.
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.)
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.
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)).
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.
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
this factor favors ...