Brown v. Tromba

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 Marlon Lorenzo Brown, ) ) 8 Plaintiff, ) Case No. 2:17-cv-02396-APG-BNW ) 9 vs. ) ORDER ) 10 Sgt. Tromba, et al., ) ) 11 Defendants. ) __________________________________________) 12 13 Presently before the Court is Plaintiff’s motion to amend. (ECF No. 40.) As discussed 14 below, the Court will grant this motion. 15 Plaintiff is an inmate who began this action as a pro se litigant. He filed two complaints at 16 the start of the litigation. (ECF Nos. 1-1, 14.) The Court screened his second amended complaint 17 and recommended that it be dismissed for failure to state a claim. (See ECF No. 22.) Plaintiff then 18 filed a motion to file a third amended complaint. (ECF No. 26.) The Court denied this motion. 19 (ECF No. 27.) 20 Plaintiff appealed the Court’s order dismissing his second amended complaint and denying 21 his motion to file a third amended complaint. (ECF No. 29.) The Ninth Circuit vacated and 22 remanded the Court’s order denying his motion to file a third amended complaint, because the 23 Court did not address whether amendment would be futile. (ECF No. 32.) 24 As a result of the Ninth Circuit’s decision, the district judge assigned to this case ordered 25 the magistrate judge to screen Plaintiff’s third amended complaint at ECF No. 26-1. (ECF No. 35.) 26 However, after this order was entered, the procedural landscape of this case changed significantly. 27 Plaintiff again moved to amend his complaint (twice) and obtained counsel. First, Plaintiff moved 28 to amend his complaint pro se. (ECF No. 36.) Then, he retained counsel, withdrew this motion to amend (ECF No. 39), and his counsel filed the motion to amend now before the Court. (ECF No. 1 40.) 2 The Court reviewed Plaintiff’s proposed complaint (ECF No. 40-1) and is satisfied that it is 3 not frivolous. The Court, in its discretion, will not provide an in depth screening analysis. Section 4 1915A provides that the court must “review . . . a complaint in a civil action in which a prisoner 5 seeks redress from the governmental entity or officer or employee of a governmental entity” and 6 “shall identify cognizable claims or dismiss the complaint, or any portion of the complaint” if it is 7 “frivolous, malicious, or fails to state a claim upon which relief can be granted” or if it “seeks 8 monetary relief from a defendant who is immune from such relief.” Section 1915A does not 9 differentiate between represented and unrepresented prisoners with regard to screening. However, 10 given that the purpose of § 1915A is to prevent defendants from having to respond to frivolous or 11 malicious lawsuits and to conserve judicial resources by dismissing these types of cases at an early 12 stage, the Court typically does not screen prisoner civil rights cases in which the prisoner is 13 represented by an attorney. See Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (stating 14 that the “purpose of § 1915A is to ensure that the targets of frivolous or malicious suits need not 15 bear the expense of responding” (quotation omitted)); O’Neal v. Price, 531 F.3d 1146, 1153 (9th 16 Cir. 2008) (explaining that the PLRA’s screening provision was intended to “conserve judicial 17 resources by authorizing district courts to dismiss nonmeritorious prisoner complaints at an early 18 stage”). Additionally, in cases in which a prisoner is represented by an attorney, the attorney’s 19 obligations under Rule 11 of the Federal Rules of Civil Procedure substantially reduce the 20 incidence of frivolous prisoner civil rights claims. 21 Given that the concerns underlying § 1915A are obviated by the fact Plaintiff is represented 22 by an attorney, the Court will not enter another screening order in this case.1 The Court will grant 23 24 1There is also persuasive authority in the Ninth Circuit that provides that the Court is not required to 25 screen every amended complaint a litigant files. See, e.g., Olausen v. Murguia, No. 3:13-CV-00388-MMD, 2014 WL 6065622, at *3 (D. Nev. Nov. 12, 2014) (“[T]he screening provision does not require a court, either explicitly 26 or implicitly, to screen every time a plaintiff seeks to amend the complaint.”). 27 28 2 1 Plaintiff’ s motion to amend, and if Defendants believe there are any issues with Plaintiff’ s 2 complaint, they can address them through a motion to dismiss. 3 IT IS THEREFORE ORDERED that Plaintiff’ motion to amend (ECF No. 40) is 4 GRANTED. 5 IT IS FURTHER ORDERED that the Clerk of Court shall detach and file ECF No. 40-1 as 6 a separate entry on the docket. 7 8 DATED: September 17, 2020 9 . 10 gr la WER Brénda Weksler □ 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28