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Spence v. Kaur

United States District Court, E.D. California

December 19, 2019

GERALD SPENCE, Plaintiff,
v.
G. KAUR, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding pro se. This action proceeds on plaintiff's second amended complaint in which he claims that while he was housed at California State Prison-Solano, defendant Kaur, Sr. Librarian, retaliated against plaintiff for filing a form 22 against her, by issuing a 128-B and then a CDC-115 (“RVR”) on the same allegedly false charges. Plaintiff's motion for leave to file a third amended complaint is now before the court. As discussed below, it is recommended that plaintiff's motion to amend be partially granted.

         I. Background

         Plaintiff's original complaint was filed on July 22, 2016. On April 27, 2017, plaintiff filed an amended complaint as of right. (ECF No. 19.) On June 20, 2017, plaintiff's amended complaint was dismissed with leave to amend. (ECF No. 20.) On August 7, 2017, plaintiff filed a second amended complaint. (ECF No. 23.) On January 19, 2018, the court found plaintiff stated a potentially cognizable claim against defendant Kaur.[1] (ECF No. 25 at 1.) Defendant Kaur filed an answer on September 19, 2018. (ECF No. 44.) On October 11, 2018, the court issued a discovery and scheduling order. On November 20, 2018, pursuant to plaintiff's request, the undersigned extended the discovery deadline to February 25, 2019, and the pretrial motions deadline was extended to May 20, 2019. (ECF No. 51.) On January 23, 2019, the undersigned granted plaintiff's second request to extend the discovery deadline, which was extended to April 19, 2019, and the pretrial motions deadline was extended to July 19, 2019. (ECF No. 58.)

         On March 7, 2019, plaintiff filed a motion to amend, accompanied by his proposed third amended complaint. (ECF Nos. 60, 61.) Defendant Kaur opposes the motion; plaintiff filed a reply. (ECF Nos. 62, 63.)

         On June 21, 2019, the court confirmed that discovery was closed, and the dispositive motions deadline was vacated. (ECF No. 82.)

         II. Proposed Amendment

         In the proposed third amended complaint, plaintiff adds due process claims against defendant Kaur, and adds substantive and procedural due process claims, retaliation claims, and “gender bias” or discrimination claims against newly-named Correctional Sgt. Muhammad, and Correctional Sgt. Chambers based on their assistance to defendant Kaur in filing a CDCR 128B Informational Chrono and RVR against plaintiff. (ECF No. 61.) Plaintiff seeks, inter alia, complete removal of the 128B Chrono and RVR, as well as monetary damages.

         III Motion to Amend

         A. The Parties' Briefing

         In his motion, plaintiff notes that his first amended complaint alleged that his due process rights were violated by defendant Chambers in connection with the hearing on the alleged retaliatory disciplinary issued by defendant Kaur, [2] and argues as follows. Recently discovered documents “show the direct involvement of both Sgt. Chambers and Aisha Muhammed in drafting, advising, approving and hearing the RVR and composition of the 128B, the basis of the RVR.” (ECF No. 61 at 1.) Plaintiff was unable to earlier move to amend because such documents “were disclosed only 30 day[s] prior after [sic] the close of discovery.” ECF No. 61 at 2.) Service of process on such new defendants can be expedited because “defendants can waive service, ” and any additional discovery will be “minimal.” (Id.) His proposed amendment is for good cause, made in good faith as a result of his diligence, and delay alone is an insufficient ground to deny amendment. Further, such new documentary evidence demonstrates “futility is moot.” (Id.) Finally, plaintiff should be permitted to amend because his new claims are “facially plausible, ” allowing reasonable inferences that the defendants are liable for their alleged misconduct. (ECF No. 61 at 2.)

         Defendant Kaur contends that the motion should be denied for the following reasons. Plaintiff's effort to bring a due process challenge is futile because such claim was dismissed when the court screened plaintiff's first amended complaint, specifically finding that plaintiff must pursue unrelated due process claims in a separate action. (ECF No. 62 at 1.) Further, adding new defendants only 22 days before discovery is to close would prejudice defendant Kaur by unduly delaying this case. In addition to the delay in adding new defendants, discovery would need to be extended in order to litigate new theories of liability: due process and gender discrimination, as well as retaliation claims against the two new defendants. Finally, amendment is futile for two reasons: (1) because the court previously dismissed plaintiff's due process claim against Chambers; and because plaintiff's due process and gender discrimination claims against Chambers and Muhammad concern the adjudication of the RVR, such claims are unrelated to plaintiff's retaliation claim against Kaur, and are barred under Rule 18(a) of the Federal Rules of Civil Procedure; and (2) because plaintiff's proposed third amended complaint fails to state a claim against Chambers and Muhammad -- plaintiff failed to allege facts showing either Chambers or Muhammad violated plaintiff's due process rights during the adjudication of the RVR, and there are no facts demonstrating either of them took any adverse action against plaintiff because of his protected First Amendment rights. (ECF. No. 62 at 6.) Defendant argues amendment is futile if it would fail to withstand a motion to dismiss for failure to state a claim, citing Dougherty v. Town of North Hempstead Bd. Of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). (ECF No. 62 at 6.)

         In reply, [3] plaintiff argues that his newly-discovered documents “leave no intelligent debate” about the involvement of Sgt. Chambers and Sgt. Muhammed “as principals in the creation, approval and hearing of the RVR they spoon-fed to a willing and waiting Kaur.” (ECF No. 64 at 1.) In addition to “several drafts, private meetings, coaching, approving Chambers solicited testimony off the record from Kaur while denying plaintiff any witnesses, though requested, ” plaintiff contends the most glaring evidence is that both the 128B and RVR authored by Kaur failed to include any specific violation, but the citation of 3005(b)(1) was added by Kaur's alleged co-conspirators. (ECF No. 64 at 1-2.) Plaintiff submitted his motion to amend soon after receipt of the documents appended to his reply. (ECF No. 64 at 5-13.)

         B. Le ...


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