United States District Court, N.D. California
ORDER DENYING MOTION FOR LEAVE TO AMEND; ADDRESSING
PENDING MOTIONS (DOCKET NOS. 112, 121, 140)
LABSON FREEMAN, United States District Judge.
an inmate on death row at San Quentin State Prison
(“SQSP”) proceeding pro se, filed a
second amended complaint pursuant to 42 U.S.C. § 1983,
alleging unconstitutional acts by SQSP correctional officers.
(Docket No. 54, hereinafter “SAC.”) The
Court found several cognizable claims, and scheduled briefing
on the matter. (Docket No. 69.) The SAC combined with the
supplemental complaint, (Docket No. 67), is the operative
complaint in this action. On August 8, 2018, the Court
screened the papers and found they contained several
cognizable claims and ordered service on Defendants. (Docket
No. 69.) Defendants were directed to file a motion for
summary judgment or other dispositive motion which remains
pending. (Id. at 13; Docket No. 104.)
February 14, 2019, Plaintiff filed a motion to amend the
complaint to add new claims. (Docket No. 112.) Defendants
filed an opposition, (Docket No. 113), and Plaintiff filed a
reply, (Docket No. 120). In their opposition, Defendants also
request the dispositive motion briefing schedule be reset.
(Docket No. 113 at 6-7.)
Motion to Amend
Rule of Civil Procedure 15(a) is to be applied liberally in
favor of amendments and, in general, leave shall be freely
given when justice so requires. See Janicki Logging Co.
v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994); cf.
Id. (attempt to amend complaint requiring amendment of
scheduling order under Fed.R.Civ.P. 16 must be based upon
good cause). “‘“In the absence of any
apparent or declared reason-such as undue delay, bad faith or
dilatory motive on the part of the movant, . . . undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.- the leave sought
should, as the rules require, be “freely
given.”'” Hall v. City of Los
Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012) (citations
omitted). Leave need not be granted where the amendment of
the complaint would cause the opposing party undue prejudice,
is sought in bad faith, constitutes an exercise in futility,
or creates undue delay. See Janicki Logging Co., 42
F.3d at 566; Roberts v. Arizona Bd. of Regents, 661
F.2d 796, 798 (9th Cir. 1981). A district court's
discretion to deny leave to amend is particularly broad where
the plaintiff has previously filed an amended complaint.
Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th
Cir. 2003); Ferdik v. Bonzelet, 963 F.2d 1258, 1261
(9th Cir. 1992).
moves to amend the complaint “based upon repeated
highly retaliatory, punitive acts of CDCR employees against
him & even his elderly & ill mother; and other family
members when they visit; and tampering [Plaintiff's]
confidential mail.” (Docket No. 112 at 1.) He wishes to
further supplement the second amended complaint and
supplemental, or alternatively, treat his motion as a
“Rule 60 motion, ” in order to add claims and
defendants which he asserts that the Court erred in failing
to include thus far this action. (Id.)
first oppose the motion to amend with respect to
Plaintiff's request that the Court reconsider its past
screening orders. (Opp. at 4.) Defendants point out that the
Court permitted Plaintiff to plead well beyond the contours
of his original 17-page complaint (drafted by retained
counsel) to add new causes of action and Defendants in a
676-page second amended complaint. (Id.) Defendants
assert that the Court was well within its authority to strike
Plaintiff's “tome” in its entirety, but that
it painstakingly evaluated the lengthy SAC. (Id.) In
reply, Plaintiff asserts that the SAC was 220 pages (the
remainder being exhibits), and that he “went to extreme
measures to detail the many crimes and torts committed
against him.” (Reply at 6.)
Defendants oppose Plaintiff's motion for attempting to
add wholly new claims and defendants. (Opp. at 5.) Defendants
point out that Plaintiff seeks to add claims of continuing
misconduct occurring after the underlying February 4, 2012
incident (assault by another inmate) which is the basis of
this action. Plaintiff incorporates by reference his
“motion for appointment of counsel, ” (Docket No.
111), in which he alleges conduct by mostly previously
unidentified staff, including problems his mother recently
had with a family visit. (Id.) Defendants assert
that these new claims should be rejected to Plaintiff filing
them in a new lawsuit, if he so sees fit. (Id.) In
reply, Plaintiff asserts that the newly identified defendants
are not “unrelated claims against different defendants,
” but rather “friends of current defendants,
acting on behalf of current Defendants - in attempts to
further punish [Plaintiff] for suing current
Defendants.” (Reply at 7.)
filed this motion to amend six months after the Court
screened the SAC and supplemental pleading. Accordingly, it
cannot be said that this motion under Rule 60 was made
“within a reasonable time.” Fed.R.Civ.P.
60(c)(1). The Court cannot ignore the fact that Plaintiff
waited months after the action was served on Defendants to
file a motion to incorporate any overlooked claims.
Accordingly, the Court finds that Plaintiff has caused undue
delay in filing this motion to correct any alleged oversight
by the Court in its previous screening orders.
respect to the motion to add further supplemental pleading,
the court may permit a party to serve a supplemental pleading
“setting out any transaction, occurrence, or event that
happened after the date of the pleading to be
supplemented.” Fed.R.Civ.P. 15(d). The power to grant
supplemental pleadings is discretionary and upon such terms
as are “just.” Id. While leave to permit
supplemental pleading is favored, it cannot be used to
introduce a separate, distinct and new cause of action.
See Planned Parenthood of So. Arizona v. Neely, 130
F.3d 400, 402 (9th Cir. 1997). Matters newly alleged in a
supplemental complaint must have some relation to the
claim(s) set forth in the original pleading. See Keith v.
Volpe, 858 F.2d 467, 474 (9th Cir. 1988). Leave to file
a supplemental complaint therefore may not be granted where
the supplemental complaint involves a new and distinct cause
of action that should be the subject of a separate suit.
See Neely, 130 F.3d at 402 (abuse of discretion to
allow plaintiffs to supplement complaint after final judgment
to attack newly amended statute).
Court finds the new claims raised by Plaintiff should be the
subject of a separate suit because they do not relate to the
claims set forth in the original pleading. Plaintiff asserts
that the claims and defendants are related because the new
defendants are allegedly friends of the current Defendants,
and that these new defendants are acting on behalf of their
“friends” in attempting to punish Plaintiff for
suing them. (Reply at 7.) Even if such conclusory allegations
were true, Plaintiff has not established that this new
conduct by new defendants are related to the claims set forth
in the original pleading or even the amended complaint.
See Keith, 858 F.2d at 474. The only cognizable
claims from the amended complaint was an Eighth Amendment
claim for failure to protect Plaintiff from an assault by an
inmate on February 4, 2012, along with some related state law
claims. (Docket No. 38.) Plaintiff's new claims involve
allegations of interference with his legal mail, a challenge
to a false Rules Violation Report, and harassment of
Plaintiff's family members. (Docket No. 111.) Clearly,
these new claims based on conduct by newly named defendants
has no relation to the claims raised in the original
pleadings. Accordingly, the Court finds that these
allegations involve new and distinct causes of action that
should be the subject of a separate suit. See Neely,
130 F.3d at 402.
on the reasons discussed above, Plaintiff's motion to
amend and supplement the complaint is
DENIED. Briefing shall proceed on the
cognizable claims in the schedule set forth below. See
infra at 6.
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