Cortez v. Stubbs

District Court, D. Nevada·Decided July 25, 2022·No. 3:21-cv-00316·Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 MOISES JOSUE CORTEZ, Case No. 3:21-CV-00316-ART-CLB

5 Plaintiff, ORDER GRANTING MOTION TO AMEND

6 v. [ECF No. 30]

7 BRANDON STUBBS, et al.,

8 Defendants.

9 10 Before the Court is Plaintiff Moises Josue Cortez’s (“Cortez”) motion for leave to 11 file a first amended complaint. (ECF No. 30.) No opposition was filed. For the reasons 12 stated below, the Court grants Cortez’s motion to amend. 13 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 14 Cortez is an inmate in the custody of the Nevada Department of Corrections 15 (“NDOC”) and is currently housed at the Ely State Prison (“ESP”). Cortez initiated this 16 action on July 23, 2021, by filing an application to proceed in forma pauperis and civil 17 rights complaint. (ECF No. 1.) Pursuant to 28 U.S.C. § 1915A, the District Court screened 18 Cortez’s complaint and allowed him to proceed on claims for (1) Eighth Amendment 19 excessive force against Defendants Weiland, Guzman, Johnson, and Does, (2) Eighth 20 Amendment deliberate indifference to serious medical needs against Defendants Searle 21 and Does, and (3) First Amendment retaliation against Defendants Weiland and Stubbs. 22 (ECF No. 3.) The District Court dismissed, with prejudice, a denial of access to courts 23 claim and dismissed, without prejudice, a Fourteenth Amendment due process claim. (Id.) 24 On May 9, 2022, the Court entered a discovery plan and scheduling order setting 25 the deadline to amend pleadings for July 11, 2022. (ECF No. 22.) On July 8, 2022, Cortez 26 filed the instant motion for leave to file a first amended complaint along with his proposed 27 first amended complaint. (ECF Nos. 30, 30-1.) Cortez seeks to amend his complaint to 1 an opposition or otherwise respond to the motion. 2 II. LEGAL STANDARD 3 Federal Rule of Civil Procedure 15(a)(2) instructs that “[t]he court should freely 4 give[] leave [to amend a pleading] when justice so requires.” The Ninth Circuit has made 5 clear Rule 15(a) permits liberal application. Sonoma Cnty. Ass’n of Retired Emps. v. 6 Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013). Under Rule 15(a), courts consider 7 various factors, including: (1) bad faith; (2) undue delay; (3) prejudice to the opposing 8 party; (4) the futility of the amendment; and (5) whether the plaintiff has previously 9 amended his complaint. Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 10 2014). The factors do not weigh equally; rather, prejudice receives the greatest weight. 11 Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing Eminence 12 Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). 13 Defendants bear the burden of establishing prejudice, and absent its presence or 14 a “strong showing” under the other factors, there is a presumption in favor of permitting 15 amendment. Eminence Cap., LLC, 316 F.3d at 1052 (citing DCD Programs, Ltd. v. 16 Leighton, 833 F.2d 183, 186-87 (9th Cir. 1987)). When considering prejudice, the court 17 may weigh against the movant the amended pleading’s great alteration of the litigation’s 18 nature that requires the opposing party to defend against “different legal theories and . . . 19 different facts.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th 20 Cir. 2006) (internal quotation omitted). Alone, such alteration is not fatal. Morongo Band 21 of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). 22 By contrast, futility “alone can justify the denial of a motion for leave to amend.” 23 Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003) (quoting Bonin v. Calderon, 59 F.3d 24 815, 845 (9th Cir. 1995)). Futility arises when the amendment is legally insufficient, 25 Missouri ex rel. Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017), or where the amended 26 complaint would be subject to dismissal, such as when it violates the statute of limitations. 27 Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008). 1 III. DISCUSSION 2 Cortez timely moves to amend his complaint to add additional defendants and 3 name Doe Defendants to his claims. (ECF No. 30.) Specifically, Cortez asserts his Eighth 4 Amendment excessive force claim against Defendants Weiland, Guzman, Brown, Cox, 5 Reubart, and Stubbs, (2) his Eighth Amendment deliberate indifference to serious medical 6 needs claim against Defendants Searle, Rigney, Johnson, Kleer, Edwards, Guzman, 7 Weiland, Brown, Herny, Cox, Stubbs, Reubart, Drummond, Davis, John Doe 1, and John 8 Doe 2, and (3) his First Amendment retaliation claim against Defendants Weiland, Stubbs, 9 Searle, Guzman, Brown, Cox, Kleer, Johnson, Edwards, Rigney, Davis, Reubart, 10 Drummond, Herny, John Doe 1, and John Doe 2. No opposition to the motion was filed 11 and the time to file an opposition has passed. 12 The Court finds that the motion to amend should be granted, as the above factors 13 discussed in Desertrain weigh in Cortez’s favor. First, rather than bad faith, the record 14 demonstrates that Cortez is acting in good faith to amend his complaint to add defendants 15 and name Doe Defendants. Second, the scheduling order allowed the parties to file 16 amended pleadings until July 11, 2022. Therefore, the Court finds that Cortez did not 17 delay in seeking amendment. 18 Third, Defendants are not prejudiced by the amendment, as it merely seeks to 19 properly name Doe defendants. Thus, the Court does not find that the amended complaint 20 greatly alters the litigation’s nature or requires an entirely new course of defense. 21 Morongo Band of Mission Indians, 893 F.2d at 1079. Amendment is not futile, as the 22 proposed amended complaint seeks to reduce Doe allegations by naming those 23 defendants. Finally, this is Cortez’s first amended pleading, thus this factor weighs in his 24 favor. In sum, the above Desertrain factors each weigh in Cortez’s favor, and, therefore, 25 the Court concludes that amendment is proper. 26 Additionally, pursuant to LR 7-2(d), the failure of an opposing party to file points 27 and authorities in response to any motion constitutes a consent to the granting of the 1 IV. CONCLUSION 2 For the reasons discussed above, IT IS ORDERED that Cortez’s motion for leave 3 to file a first amended complaint, (ECF No. 30), is GRANTED. 4 IT IS FURTHER ORDERED that the Clerk of the Court shall FILE Cortez’s first 5 amended complaint, (ECF No. 30-1), which is now the operative complaint in this case.