United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. He alleges that
defendant violated his rights by using excessive force
against him. ECF No. 1. Five motions are now pending before
the court. First, plaintiff has moved to amend his complaint.
ECF No. 15. Second, defendant has moved for summary judgment
on the grounds that plaintiff failed to exhaust his
administrative remedies prior to bringing this suit and that
his claims are Heck-barred. ECF No. 17. Third, defendant
has moved for a protective order staying discovery until the
court rules on both of the foregoing motions. ECF No. 18.
Fourth, defendant has moved to strike plaintiff’s
surreply to the pending motion for summary judgment. ECF No.
31. Fifth, plaintiff has filed a motion to schedule a
telephone interview with a witness. ECF No. 32. After review
of the record and, for the reasons stated below,
plaintiff’s motion to amend is granted,
defendant’s motion to strike is granted,
defendant’s motion for protective order is denied as
moot, plaintiff’s motion for a telephonic interview is
denied, and it is recommended that defendant’s motion
for summary judgment be denied.
alleges that, on October 20, 2014 and while incarcerated at
High Desert State Prison, he was issued a quarterly package
by the defendant. ECF No. 1 at 3. He claims that defendant
illegally confiscated a bag of cereal from that package,
however. Id. at 3-4. Plaintiff asked defendant to
return the item, but was rebuffed with an instruction to
return to his cell. Id. at 4. Plaintiff refused that
instruction, asked to speak with the sergeant on duty, and
seated himself on a nearby bench. Id. at 4-5. After
plaintiff refused two additional instructions from defendant
to return to his cell, he claims that defendant threw him on
the ground and placed a knee on his neck. Id. at 5.
Plaintiff claims that he never physically resisted during the
altercation and that the degree of force defendant used to
restrain him was excessive. Id. at 5-6.
plaintiff was assessed a disciplinary violation which charged
that he had risen from the bench and advanced toward
defendant prior to the use of force. Id. at 6.
Plaintiff disputed this version of events at his disciplinary
hearing, but was nevertheless found guilty of the charges.
Id. As a result, he lost ninety days credit for time
Plaintiff’s Motion to Amend
states that, at the time he began this action, he could not
access certain relevant documents because he was housed in
administrative segregation. ECF No. 15 at 2. As a result, he
contends that his original complaint contains omissions which
the amendment is designed to correct. Id. Defendant
opposes the motion to amend based on four arguments, namely
that: (1) plaintiff may not amend as a matter of course; (2)
defendant would be prejudiced by the amendment; (3) amendment
would be futile; and (4) amendment would cause undue delay.
ECF No. 16 at 2-5. The court, after review of the proposed
amendment and defendant’s arguments, concludes that
leave to amend must be granted.
is correct insofar as he argues that plaintiff cannot amend
his complaint as a matter of course. Rule 15(a)(1) provides
that a party may amend a pleading once as a matter of course
within either twenty-one days of serving it or twenty-one
days of a responsive pleading being served. Fed.R.Civ.P.
15(a)(1). Defendant filed his answer on October 26, 2015 and
plaintiff did not move to amend until November 20, 2015. ECF
No. 12; ECF No. 15. Nevertheless, a party may still amend
with leave of the court. Fed.R.Civ.P. 15(a)(2). Rule 15(a)(2)
provides that “[t]he court should freely give leave
when justice so requires, ” and the Ninth Circuit has
directed courts to apply this policy with “extreme
liberality.” DCD Programs, Ltd. v. Leighton,
833 F.2d 183, 186 (9th Cir. 1987). When determining whether
to grant leave to amend under Rule 15(a)(2), a court should
consider the following factors: (1) undue delay, (2) bad
faith, (3) futility of amendment, and (4) prejudice to the
opposing party. Foman v. Davis, 371 U.S. 178, 182
(1962). Granting or denying leave to amend rests in the sound
discretion of the trial court, and will be reversed only for
abuse of discretion. Swanson v. U.S. Forest Serv.,
87 F.3d 339, 343 (9th Cir. 1996).
there is no indication that plaintiff, who is appearing
pro se, made this filing in bad faith. Defendant
argues, however, that the amendment would cause undue delay
insofar as the court would be required to screen the new
allegations. ECF No. 16 at 5. The amendment does not new add
claims or defendants, however, and the screening
burden on the court is minimal. The court also disagrees that
the case would be “set back weeks, if not
months.” Id. Plaintiff’s excessive force
claim has not undergone any meaningful, substantive change as
a result of the amendment.
defendant argues that the amendment would be futile insofar
as plaintiff has not advanced any facts which support a
finding of excessive force. ECF No. 16 at 4. The court
disagrees. Plaintiff’s allegations establish that he
was in a seated position and had offered to allow himself to
be restrained when defendant took him to the floor. ECF No.
14 at 6. If plaintiff’s version is taken as true, there
was no reason for doing so. Plaintiff also alleges that
defendant placed a knee on his back and rocked back and forth
in an attempt make him squirm. Id. at 7. Again, if
plaintiff’s account is true, there was no justification
for doing so. Granted, these allegations are unproven, but
just as in ruling on a Rule 12 (b)(6) motion the court
accepts them as true in evaluating defendant’s futility
the court finds that granting plaintiff leave to amend would
not prejudice defendant. Curiously, defendant claims that the
amendment would require him to prepare an entirely new motion
for summary judgment. Yet the amended complaint simply
restates, albeit in greater detail, the same excessive force
claim which the original complaint raised. The arguments
advanced in the pending motion for summary judgment- that
plaintiff failed to administratively exhaust this excessive
force claim and that it is Heck-barred - would apply
with equal measure and do not require supplementation.
motion to amend is therefore granted and this case will
proceed on the first amended complaint. ECF No. 14. For the
purposes of 28 U.S.C. § 1915A(a), the court finds that
the first amended complaint (like the original complaint)
states a potentially cognizable Eighth Amendment excessive
force claim against defendant J. Wright. See ECF No.
Defendant’s Motion to Strike
defendant correctly points out, neither the Federal Rules of
Civil Procedure nor this district’s Local Rules entitle
a party to a surreply as a matter of right. Instead, the
Local Rules provide for a motion, a response in opposition to
the motion, and a reply. See E.D. Cal. R.
230(b)-(d). The court may, in its discretion, allow a
surreply “where a valid reason for such additional
briefing exists, such as where the movant raises new
arguments in its reply brief.” Hill v.
England, 2005 U.S. Dist. LEXIS 29357, 2005 WL 3031136,
at *1 (E.D. Cal. Nov. 8, 2005). Those circumstances are not
implicated here and plaintiff did not ask the court’s
permission prior to submitting his surreply. ECF No. 30.
Defendant’s motion to strike is granted and the court
declines to consider the content of the surreply in weighing
the pending motion for summary judgment.
Plaintiff’s Motions for Telephonic Interviews
has asked the court to order defense counsel or the relevant
prison litigation coordinator to schedule a telephone
interview with another inmate who was purportedly an
eyewitness to the events giving rise to this suit. ECF No. 32
at 1; ECF No. 34 at 2. The court declines to do so at this
time. Instead, as defendant correctly notes in his
opposition, plaintiff may avail himself of the process
provided for in California Code of Regulations, Title 15,
§ 3139 by which an inmate can correspond with another
inmate who is housed at another unit. Plaintiff has not
indicated that he has attempted to use this process and been
denied. If plaintiff attempts to engage in
communications with his witness by following the proper
procedures under § 3139(a)-(c) and is denied access or
is otherwise unable to effectively communicate with his
witness, and those communications are necessary to the
litigation of this action, plaintiff may file another motion
describing his attempts to engage in the process provided by
§ 3139(a)-(c), why that process failed him, and why the
evidence from the witness is relevant and seeking appropriate
Defendant’s Motion for Summary Judgment
Summary Judgment Standard
judgment is appropriate when there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Summary judgment avoids unnecessary trials in cases in which
the parties do not dispute the facts relevant to the
determination of the issues in the case, or in which there is
insufficient evidence for a jury to determine those facts in
favor of the nonmovant. Crawford-El v. Britton, 523
U.S. 574, 600 (1998); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle
Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468,
1471-72 (9th Cir. 1994). At bottom, a summary judgment motion
asks whether the evidence presents a sufficient disagreement
to require submission to a jury.
principal purpose of Rule 56 is to isolate and dispose of
factually unsupported claims or defenses. Celotex Cop. v.
Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule
functions to “‘pierce the pleadings and to assess
the proof in order to see whether there is a genuine need for
trial.’” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
Fed.R.Civ.P. 56(e) advisory committee’s note on 1963
amendments). Procedurally, under summary judgment practice,
the moving party bears the initial responsibility of
presenting the basis for its motion and identifying those
portions of the record, together with affidavits, if any,
that it believes demonstrate the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 323;
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc). If the moving party meets its burden with a