2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 GILBERT FIGUEROA, Case No. 2:22-cv-00477-ART-DJA 5 Plaintiff, ORDER PARTIALLY SUSTAINING 6 v. PLAINTIFF’S OBJECTION (ECF NO. 42) TO REPORT AND 7 GILL, et al., RECOMMENDATION (ECF NO. 41) 8 Defendants.
9 10 Pro se Plaintiff Gilbert Figueroa brings this §1983 action against officers of 11 the Las Vegas Metropolitan Police Department, alleging they needlessly shot him, 12 causing him to suffer nerve damage and to lose a testicle, in violation of his 13 Fourth Amendment rights. Before the Court is Mr. Figueroa’s Objection (ECF No. 14 42) to Magistrate Judge Daniel J. Albregts’ Report and Recommendation (ECF 15 No. 41) (R&R) recommending the Court deny Mr. Figueroa’s Motion for Leave to 16 File an Amended Complaint (ECF No. 35). The Court grants Mr. Figueroa leave to 17 amend his complaint to add a conspiracy claim but denies leave to add other 18 proposed claims. 20 In April of 2020, members of the LVMPD shot Mr. Figueroa while arresting 21 him in Las Vegas. (ECF No. 12 at 4.) As a result, Mr. Figueroa suffered nerve 22 damage, leg pain, and PTSD, and doctors surgically removed one of his testicles. 23 In his First Amended Complaint (“FAC”), which is the operative complaint 24 at the time of this order, Mr. Figueroa brought a claim for Fourth Amendment 25 excessive force against the officers who arrested him and a municipal liability 26 claim for failure to train and deliberate indifference against the LVMPD. (Id. at 4- 27 7.) Mr. Figueroa’s FAC was screened in September 2022. (ECF No. 13.) His 28 1 municipal liability claim was dismissed without prejudice, and his Fourth 2 Amendment claim was allowed to proceed. (Id. at 6.) 3 On April 17, 2023, Mr. Figueroa sought leave to amend his FAC by (1) 4 adding the Las Vegas Metropolitan Police Department to his existing Fourth 5 Amendment claim; (2) reasserting his municipal liability claim against LVMPD; 6 and (3) adding a new claim for conspiracy against two named officer defendants 7 and a Doe officer. (ECF No. 41 at 1; compare ECF No. 12 with ECF No. 35-1.) The 8 deadline for amending pleadings was January 3, 2023. (ECF No. 23 at 1.) 9 Judge Albregts then issued an R&R recommending the Court deny Mr. 10 Figueroa’s motion without prejudice because Mr. Figueroa had failed to 11 demonstrate good cause for amending his FAC. (ECF No. 41 at 3.) According to 12 Judge Albregts, Mr. Figueroa’s first two proposed amendments aimed to add 13 LVMPD to his Fourth Amendment claim and reasserted his municipal liability 14 claim against LVMPD. Judge Albrechts denied leave to amend because the 15 underlying facts of those claims were available to Mr. Figueroa “since the 16 beginning of this case.” (Id. at 2.) Mr. Figueroa’s third proposed amendment 17 added a conspiracy claim that was based on newly-discovered bodycam footage 18 that was not previously available to Mr. Figueroa. (Id.) Judge Albregts denied 19 leave to add the conspiracy claim because Mr. Figueroa had failed to explain when 20 he received the footage or why he waited until after the deadline to amend his 21 FAC. (Id. at 3.) 22 In his Objection to Judge Albregts’ R&R, (ECF No. 42), Mr. Figueroa 23 provided a timeline detailing his diligence in seeking the relevant bodycam footage 24 and explaining why it took him until April to file his Motion for Leave to Amend. 25 Mr. Figueroa did not explain why he failed to add his claims against LVMPD 26 sooner. 27 Defendants have since objected that Mr. Figueroa should not be given leave 28 to amend his FAC because he has failed to demonstrate good cause, inclusion of 1 the new claims would be futile, and amendment would cause Defendants undue 2 prejudice by prolonging the litigation and forcing parties to reopen portions of the 3 discovery process. (ECF No. 43.) 5 This Court “may accept, reject, or modify, in whole or in part, the findings 6 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 7 a party timely objects to a magistrate judge’s report and recommendation, the 8 Court is required to “make a de novo determination of those portions of the [report 9 and recommendation] to which objection is made.” Id. Because Mr. Figueroa 10 objected to Judge Albregts’ R&R, (ECF No. 42), the Court’s review is de novo. 11 When, as in this case, the deadline for amending pleadings under a 12 scheduling order has passed, the Court’s must analyze motions to amend 13 complaints under Rule 16(b). See Coleman v. Quaker Oats Co., 232 F.3d 1271, 14 1294 (9th Cir. 2000) (court correctly applied Rule 16(b) because time to amend 15 pleadings lapsed before party moved to amend); Johnson v. Mammoth Recreations, 16 Inc., 975 F.2d 604, 608 (9th Cir. 1992) (applying Rule 16(b) once deadline to 17 amend pleadings has passed). Under Rule 16(b)(4), a “schedule may be modified 18 only for good cause and with the judge’s consent.” “Rule 16(b)’ s good cause 19 standard primarily considers the diligence of the party seeking the amendment.” 20 In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 21 2013), aff’d sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015) (internal 22 quotation marks and citations omitted). 23 Despite his earlier failure to show good cause, Mr. Figueroa’s Objection 24 provides a detailed explanation of his diligence and inability to bring his 25 conspiracy claim sooner. As a prisoner, Mr. Figueroa’s access to legal documents 26 is limited. Mr. Figueroa received the relevant bodycam footage on January 6, 27 2023. (ECF No. 42 at 2.) On January 18, he was informed he needed to schedule 28 an appointment to view that footage. (Id.) He promptly sent a request to view the 1 footage on January 25 but was not allowed to access it until February 27—and 2 then only for one hour per week. (Id.) On March 5, Mr. Figueroa sent a discovery 3 request to Defendants in order to learn the names of the officers he hoped to sue. 4 (Id.) On April 3, he received a list containing those names. (Id.) On April 16, he 5 filed a motion to amend his FAC. (Id.) 6 Mr. Figueroa has not demonstrated the same diligence in bringing his 7 proposed claims against the LVMPD. The Court agrees with Judge Albregts that 8 Mr. Figueroa could have brought these claims at the beginning of this litigation. 9 Indeed, he has tried to bring his municipal liability claim before, and he has not 10 alleged any new facts since the Court dismissed that claim. (Compare ECF No. 12 11 with ECF No. 35-1.) Given the available facts, Mr. Figueroa has not met Rule 12 16(b)’s good cause standard for his claims against the LVMPD. 13 Defendants object that allowing Mr. Figueroa to amend his FAC would be 14 futile and result in prejudicial delays. (ECF No. 43 at 7.) After a party has shown 15 good cause under Rule 16(b), it must demonstrate that amendment is proper 16 under Rule 15. Johnson, 975 F.2d at 608 (citation omitted). “The court considers 17 five factors [under Rule 15] in assessing the propriety of leave to amend—bad 18 faith, undue delay, prejudice to the opposing party, futility of amendment, and 19 whether the plaintiff has previously amended the complaint.” United States v. 20 Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). Courts “should freely give 21 leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).
Free access — add to your briefcase to read the full text and ask questions with AI
2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 GILBERT FIGUEROA, Case No. 2:22-cv-00477-ART-DJA 5 Plaintiff, ORDER PARTIALLY SUSTAINING 6 v. PLAINTIFF’S OBJECTION (ECF NO. 42) TO REPORT AND 7 GILL, et al., RECOMMENDATION (ECF NO. 41) 8 Defendants.
9 10 Pro se Plaintiff Gilbert Figueroa brings this §1983 action against officers of 11 the Las Vegas Metropolitan Police Department, alleging they needlessly shot him, 12 causing him to suffer nerve damage and to lose a testicle, in violation of his 13 Fourth Amendment rights. Before the Court is Mr. Figueroa’s Objection (ECF No. 14 42) to Magistrate Judge Daniel J. Albregts’ Report and Recommendation (ECF 15 No. 41) (R&R) recommending the Court deny Mr. Figueroa’s Motion for Leave to 16 File an Amended Complaint (ECF No. 35). The Court grants Mr. Figueroa leave to 17 amend his complaint to add a conspiracy claim but denies leave to add other 18 proposed claims. 20 In April of 2020, members of the LVMPD shot Mr. Figueroa while arresting 21 him in Las Vegas. (ECF No. 12 at 4.) As a result, Mr. Figueroa suffered nerve 22 damage, leg pain, and PTSD, and doctors surgically removed one of his testicles. 23 In his First Amended Complaint (“FAC”), which is the operative complaint 24 at the time of this order, Mr. Figueroa brought a claim for Fourth Amendment 25 excessive force against the officers who arrested him and a municipal liability 26 claim for failure to train and deliberate indifference against the LVMPD. (Id. at 4- 27 7.) Mr. Figueroa’s FAC was screened in September 2022. (ECF No. 13.) His 28 1 municipal liability claim was dismissed without prejudice, and his Fourth 2 Amendment claim was allowed to proceed. (Id. at 6.) 3 On April 17, 2023, Mr. Figueroa sought leave to amend his FAC by (1) 4 adding the Las Vegas Metropolitan Police Department to his existing Fourth 5 Amendment claim; (2) reasserting his municipal liability claim against LVMPD; 6 and (3) adding a new claim for conspiracy against two named officer defendants 7 and a Doe officer. (ECF No. 41 at 1; compare ECF No. 12 with ECF No. 35-1.) The 8 deadline for amending pleadings was January 3, 2023. (ECF No. 23 at 1.) 9 Judge Albregts then issued an R&R recommending the Court deny Mr. 10 Figueroa’s motion without prejudice because Mr. Figueroa had failed to 11 demonstrate good cause for amending his FAC. (ECF No. 41 at 3.) According to 12 Judge Albregts, Mr. Figueroa’s first two proposed amendments aimed to add 13 LVMPD to his Fourth Amendment claim and reasserted his municipal liability 14 claim against LVMPD. Judge Albrechts denied leave to amend because the 15 underlying facts of those claims were available to Mr. Figueroa “since the 16 beginning of this case.” (Id. at 2.) Mr. Figueroa’s third proposed amendment 17 added a conspiracy claim that was based on newly-discovered bodycam footage 18 that was not previously available to Mr. Figueroa. (Id.) Judge Albregts denied 19 leave to add the conspiracy claim because Mr. Figueroa had failed to explain when 20 he received the footage or why he waited until after the deadline to amend his 21 FAC. (Id. at 3.) 22 In his Objection to Judge Albregts’ R&R, (ECF No. 42), Mr. Figueroa 23 provided a timeline detailing his diligence in seeking the relevant bodycam footage 24 and explaining why it took him until April to file his Motion for Leave to Amend. 25 Mr. Figueroa did not explain why he failed to add his claims against LVMPD 26 sooner. 27 Defendants have since objected that Mr. Figueroa should not be given leave 28 to amend his FAC because he has failed to demonstrate good cause, inclusion of 1 the new claims would be futile, and amendment would cause Defendants undue 2 prejudice by prolonging the litigation and forcing parties to reopen portions of the 3 discovery process. (ECF No. 43.) 5 This Court “may accept, reject, or modify, in whole or in part, the findings 6 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 7 a party timely objects to a magistrate judge’s report and recommendation, the 8 Court is required to “make a de novo determination of those portions of the [report 9 and recommendation] to which objection is made.” Id. Because Mr. Figueroa 10 objected to Judge Albregts’ R&R, (ECF No. 42), the Court’s review is de novo. 11 When, as in this case, the deadline for amending pleadings under a 12 scheduling order has passed, the Court’s must analyze motions to amend 13 complaints under Rule 16(b). See Coleman v. Quaker Oats Co., 232 F.3d 1271, 14 1294 (9th Cir. 2000) (court correctly applied Rule 16(b) because time to amend 15 pleadings lapsed before party moved to amend); Johnson v. Mammoth Recreations, 16 Inc., 975 F.2d 604, 608 (9th Cir. 1992) (applying Rule 16(b) once deadline to 17 amend pleadings has passed). Under Rule 16(b)(4), a “schedule may be modified 18 only for good cause and with the judge’s consent.” “Rule 16(b)’ s good cause 19 standard primarily considers the diligence of the party seeking the amendment.” 20 In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 21 2013), aff’d sub nom. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373 (2015) (internal 22 quotation marks and citations omitted). 23 Despite his earlier failure to show good cause, Mr. Figueroa’s Objection 24 provides a detailed explanation of his diligence and inability to bring his 25 conspiracy claim sooner. As a prisoner, Mr. Figueroa’s access to legal documents 26 is limited. Mr. Figueroa received the relevant bodycam footage on January 6, 27 2023. (ECF No. 42 at 2.) On January 18, he was informed he needed to schedule 28 an appointment to view that footage. (Id.) He promptly sent a request to view the 1 footage on January 25 but was not allowed to access it until February 27—and 2 then only for one hour per week. (Id.) On March 5, Mr. Figueroa sent a discovery 3 request to Defendants in order to learn the names of the officers he hoped to sue. 4 (Id.) On April 3, he received a list containing those names. (Id.) On April 16, he 5 filed a motion to amend his FAC. (Id.) 6 Mr. Figueroa has not demonstrated the same diligence in bringing his 7 proposed claims against the LVMPD. The Court agrees with Judge Albregts that 8 Mr. Figueroa could have brought these claims at the beginning of this litigation. 9 Indeed, he has tried to bring his municipal liability claim before, and he has not 10 alleged any new facts since the Court dismissed that claim. (Compare ECF No. 12 11 with ECF No. 35-1.) Given the available facts, Mr. Figueroa has not met Rule 12 16(b)’s good cause standard for his claims against the LVMPD. 13 Defendants object that allowing Mr. Figueroa to amend his FAC would be 14 futile and result in prejudicial delays. (ECF No. 43 at 7.) After a party has shown 15 good cause under Rule 16(b), it must demonstrate that amendment is proper 16 under Rule 15. Johnson, 975 F.2d at 608 (citation omitted). “The court considers 17 five factors [under Rule 15] in assessing the propriety of leave to amend—bad 18 faith, undue delay, prejudice to the opposing party, futility of amendment, and 19 whether the plaintiff has previously amended the complaint.” United States v. 20 Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). Courts “should freely give 21 leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Defendants concede that 22 a conspiracy claim against the officers is not precluded as a matter of law. (ECF 23 No. 43 at 6.). Any resulting delay from amendment would not so prejudice 24 Defendants as to outweigh Rule 15’s other factors. Mr. Figueroa, who has 25 amended his complaint only once, has shown that he was diligent, and there was 26 no bad faith or undue delay on his part. Here, amendment is in the interest of 27 justice. 1 It is ordered that Judge Albregts’ R&R (ECF No. 41) is rejected in part and 2 || adopted in part. 3 It is further ordered that Mr. Figueroa’s Motion for Leave to Amend (ECF 4 || No. 35) is granted in part and denied in part. Mr. Figueroa may amend his 5 || complaint to add his proposed conspiracy claim but may not add any of his other 6 || proposed claims or defendants. 7 Dated this 3™4 day of November 2023. 8 9 Ans lose 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28