Johnson v. Barrett

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 Lausteveion Johnson, Case No. 2:17-cv-02304-RFB-BNW

7 Plaintiff, ORDER AND REPORT AND 8 v. RECOMMENDATION

9 Regina Barrett, et al.,

10 Defendants.

11 12 Presently before the Court is Plaintiff’s motion to amend. (ECF No. 69.) Defendants 13 responded to this motion (ECF No. 73), and Plaintiff replied (ECF No. 77). For the reasons 14 discussed below, the Court grants Plaintiff’s motion in part and recommends that it be denied in 15 part. 16 BACKGROUND 17 This is a prisoner civil rights case. Plaintiff filed his complaint on September 1, 2017, 18 while in the custody of the Nevada Department of Corrections (NDOC). ECF No. 1-1. On 19 October 30, 2018, the Court issued its screening order. ECF No. 4. Pursuant to the screening 20 order, Plaintiff was allowed to proceed on the following claims: 21 • A First Amendment and Religious Land Use and Institutionalized Persons Act claim against Defendant Mesa, which alleged that he took Plaintiff’s Qur’an for no legitimate 22 reason and refused to return it. 23 • An Eighth Amendment claim against Defendants Gilmore and Barrett, which alleged 24 that Gilmore sexually assaulted Plaintiff at the request of Barrett, after Barrett threatened Plaintiff with sexual assault in retaliation for Plaintiff’s ongoing filing of grievances. 25 • A First Amendment retaliation claim against Defendants Gilmore, Mesa, Barrett, Knatz, 26 and Harris, which alleged that Gilmore failed to list Plaintiff’s television in his property; Barrett refused to process Plaintiff’s emergency grievance and threatened him with sexual 27 assault; Mesa took Plaintiff’s Qur’an; Gilmore sexually assaulted Plaintiff; and Knatz, Harris, and Barrett filed false disciplinary charges against Plaintiff, all in retaliation for 1 Plaintiff’s filing of grievances. Id. at 5-8. 2 On April 1, 2019, Defendants filed a partial motion to dismiss. ECF No. 23. On February 3 27, 2020, a hearing was held on this motion. ECF No. 66. Defendants’ motion was granted in part 4 and denied in part. Id. The Court (1) granted the motion as to Plaintiff's Religious Land Use and 5 Institutionalized Persons Act claim against Defendant Mesa. Dismissal as to this claim was 6 without prejudice, and Plaintiff was given leave to amend the complaint to request injunctive 7 relief. Id. (2) The motion was also granted as to Plaintiff's claims against Defendants in their 8 official capacities. This dismissal was with prejudice, as the Court found that amendment would 9 be futile. Id. (3) The motion was denied without prejudice as to qualified immunity. Id. 10 On August 20, 2019, this Court dismissed Defendant Gilmore without prejudice pursuant 11 to Fed. R. Civ. P. 4(m). ECF No. 52. 12 On March 24, 2020, Plaintiff filed his motion to amend. ECF No. 69. Plaintiff writes that 13 he moves to amend his complaint to add requests for specific injunctive relief, to add defendants, 14 and to extend counts. Id. at 1. 15 Defendants oppose Plaintiff’s motion to amend, in part, on several grounds discussed 16 below. ECF No. 73. Plaintiff replied at ECF No. 77, discussing Defendants’ arguments. 17 DISCUSSION 18 Generally, a party may amend its pleading once “as a matter of course” within twenty-one 19 days of serving it, or within twenty-one days after service of a responsive pleading or motion 20 under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its pleading 21 only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 22 “The court should freely give leave when justice so requires.” Id. “The court considers five 23 factors [under Rule 15] in assessing the propriety of leave to amend—bad faith, undue delay, 24 prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 25 amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). 26 27 1 I. Plaintiff’s Request for Injunctive Relief Related to Plaintiff’s Qur’an 2 Defendants do not oppose Plaintiff’s request to amend his complaint to the extent he seeks 3 to add a request for injunctive relief related to the return of his Qur’an. ECF No. 73 at 4-5. The 4 Court also previously stated that Plaintiff could amend his complaint to request this relief. ECF 5 No. 66. Accordingly, the Court will allow Plaintiff to amend his complaint to request injunctive 6 relief related to the return of his Qur’an. 7 II. Plaintiff’s Request to Sue Defendants in Their Official Capacity 8 Plaintiff’s proposed amended complaint sues all Defendants in both their individual and 9 official capacities. ECF No. 69-1 at 2-3. The Court previously dismissed Plaintiff’s official- 10 capacity claims with prejudice. ECF No. 66. Accordingly, Defendants argue that Plaintiff’s 11 claims should not be allowed to proceed against Defendants in their official capacities. ECF No. 12 73 at 5. In reply, Plaintiff argues that he is only suing Defendants in their official capacity for 13 injunctive relief, and the Court only dismissed his official-capacity claims with prejudice when he 14 was seeking monetary damages. ECF No. 77 at 1-2. 15 Plaintiff is correct. Plaintiff’s original complaint only sought monetary damages. ECF No. 16 5 at 12. However, Plaintiff now also seeks two forms of injunctive relief: (1) the return of his 17 Qur’an from NDOC and (1) that the camera policy be changed to mandate that footage be kept of 18 alleged staff misconduct. ECF No. 69-1 at 18. As a plaintiff may sue government actors in their 19 official capacity for injunctive relief (see Wolfe v. Strankman, 392 F.3d 358, 364–65 (9th Cir. 20 2004)), the Court will allow Plaintiff to sue Defendants in their official capacity for injunctive 21 relief only. 22 III. Plaintiff’s Request to Rename Gilmore as a Defendant 23 Plaintiff’s amended complaint seeks to add Gilmore as a defendant. Plaintiff’s original 24 complaint made allegations against Gilmore. See ECF No. 5 at 2. The Office of the Attorney 25 General did not accept service for Gilmore but provided a last known address. See ECF No. 15. 26 Plaintiff did not serve Gilmore. 27 On June 18, 2019, the Court filed a Notice of Intent to Dismiss Gilmore pursuant to Fed. 1 Gilmore, but the Court denied this request. See ECF No. 51. The Court noted that “Over the past 2 several years, Plaintiff has filed 32 cases in this court. Plaintiff is familiar with this court’s rules 3 on service and issuance of Summons. He has filed motions to extend the time to perfect service 4 and requests for the U.S. Marshal to serve in his other cases. Johnson is an experienced pro se 5 litigant.” ECF No 51 at 2. The Court further found that Plaintiff had not demonstrated good cause 6 to extend the time to serve Gilmore. Id. at 3. Shortly thereafter, the Court ordered this case 7 dismissed without prejudice against Gilmore. See ECF No. 52. 8 Now, Plaintiff attempts to re-name Gilmore in his proposed amended complaint. ECF No. 9 69-1 at 4. Plaintiff’s allegations against Gilmore appear to be the same in the complaint and the 10 amended complaint. Compare ECF No. 5 and ECF No. 69-1. 11 The Court agrees with Defendants that Plaintiff is attempting to make a bad faith end-run 12 around this Court’s prior order dismissing Gilmore. While Plaintiff correctly asserts in his reply 13 brief that Gilmore was dismissed without prejudice (ECF No. 77 at 2), he does not cite any 14 authority for the proposition that the Court could or should allow him to rename Gilmore after he 15 has been dismissed. See ECF No. 77. Accordingly, the Court will recommend that Plaintiff’s 16 motion to amend be denied under LR 7-2(d) to the extent that it seeks to rename Gilmore. 17 IV. Plaintiff’s Request to Rename Carson City as a Defendant 18 Plaintiff’s original complaint named Carson City as a Defendant. See ECF No. 5. Carson 19 City was dismissed in the Court’s screening order, as Plaintiff failed to make sufficient factual 20 allegations to state a claim against it. See ECF No. 4. Plaintiff now attempts to rename Carson 21 City as defendant in his amended complaint. See ECF No. 69-1. As Defendants correctly point 22 out, however, Plaintiff does not appear to allege any additional facts about Carson City that would 23 suffice to state a claim against it. See ECF No. 73 at 7; ECF Nos. 5, 69-1. Accordingly, the Court 24 will recommend that Plaintiff’s motion to amend be denied to the extent it seeks to add Carson 25 City as a defendant. 26 V. Plaintiff’s Request to Add Defendants Dzurenda, Howell, and Gentry 27 Plaintiff seeks to add three new defendants in his amended complaint: Jerry Howell, Jo 1 the Eighth Amendment by failing to properly train their employees. Id. at 13. Though Plaintiff’s 2 penmanship is difficult to read, he also appears to allege that these defendants knew that when 3 prisoners complained of abuse, employees would erase any video footage of these events. Id. 4 Plaintiff also alleges that videos relevant to his allegations existed but were destroyed. Id. 5 As Defendants correctly point out, “[a] supervisor is only liable for constitutional 6 violations of his subordinates if the supervisor participated in or directed the violations, or knew 7 of the violations and failed to act to prevent them. There is no respondent superior liability under 8 section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Here, Plaintiff does not allege 9 any facts suggesting that Howell, Gentry, or Dzurenda participated in, directed, or knew about 10 and failed to prevent the alleged violations of Plaintiff’s Eighth Amendment rights. See ECF No. 11 69-1. While Plaintiff generally suggests that these defendants knew other prison employees 12 destroyed evidence of prisoner abuse, Plaintiff does not allege that these defendants participated 13 in, directed, or knew about and failed to prevent his abuse. See id. at 69-1 at 13. Nor does Plaintiff 14 allege that these defendants participated in, directed, or knew about and failed to prevent the 15 destruction of relevant evidence in this case. Id. (And even assuming Plaintiff had alleged this, 16 Plaintiff does not explain how destruction of evidence violates the Eighth Amendment.) 17 Accordingly, the Court will recommend that Plaintiff’s motion to amend be denied to the extent 18 that he seeks to add claims against Howell, Gentry, and Dzurenda. 19 VI. Plaintiff’s Request to Add Additional Claims 20 Plaintiff seeks to add a Fourth Count to his amended complaint, adding claims for 21 multiple violations of the Eighth Amendment, conspiracy, assault and battery, and supervisory 22 liability. ECF No. 69-1 at 12-14. The court considers five factors under Rule 15 in assessing 23 whether to grant leave to amend: bad faith, undue delay, prejudice to the opposing party, futility 24 of amendment, and whether the plaintiff has previously amended the complaint. United States v. 25 Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). 26 Here, Defendants do not address these factors directly but suggest that amendment should 27 be denied based on Plaintiff’s delay. See ECF No. 73 at 8. Defendants point out that Plaintiff’s 1 ECF No. 5. The Court agrees that the new count seems to arise out of the same conduct alleged in 2 2017. And Plaintiff does not suggest that he did not know about these facts when he filed his 3 original complaint in 2017. See ECF Nos. 69, 69-1, 77. However, delay alone is not a dispostive 4 factor in the amendment analysis. Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 5 986 (9th Cir. 1999) (“delay is not a dispositive factor in the amendment analysis”); Morongo 6 Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (delay of nearly two years 7 would not be enough by itself to support denial of motion to amend). Because Defendants did not 8 discuss any of the other Rule 15 factors and courts cannot manufacturer arguments for litigants, 9 the Court will allow Plaintiff’s Fourth Count to proceed to the extent it is not otherwise 10 inconsistent with this opinion.1 11 The Court also declines Defendants’ request to screen Plaintiff’s new count. See ECF No. 12 73 at 8. The Court ordinarily screens plaintiffs’ complaints prior to service. See 28 U.S.C. § 13 1915(e)(2)(B)(i); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam). However, 14 when defendants file a responsive pleading, such as a motion to dismiss, the need for screening is 15 obviated. See, e.g., Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (noting that the 16 purpose of Section 1915 is to ensure that “the targets of frivolous or malicious suits need not bear 17 the expense of responding”); see also Olausen v. Murguia, No. 3:13-CV-00388-MMD, 2014 WL 18 6065622, at *3 (D. Nev. Nov. 12, 2014) (“[T]he screening provision does not require a court, 19 either explicitly or implicitly, to screen every time a plaintiff seeks to amend the complaint.”). 20 In this case, another screening order is not necessary. The Court screened Plaintiff’s 21 original complaint (which survived screening), and Defendants responded by filing a motion to 22 dismiss. See ECF No. 23. Additionally, Defendants were given another opportunity to challenge 23 Plaintiff’s amended complaint in their response to Plaintiff’s motion to amend. See ECF No. 73. 24 Accordingly, this case shall proceed on the normal litigation track and will not be screened again. 25 26 27 1 For example, to the extent Plaintiff attempts to bring claims against Gilmore, Carson City, 1 ORDER AND RECOMMENDATIONS 2 IT IS THEREFORE ORDERED that Plaintiff’s motion to amend (ECF No. 69) is 3 GRANTED in part and the Court RECOMMENDS that it be DENIED in part. 4 IT IS FURTHER ORDERED that Plaintiff’s motion to amend his complaint is 5 GRANTED to the extent he seeks to amend his complaint to request injunctive relief related to 6 the return of his Qur’an. 7 IT IS FURTHER ORDERED that Plaintiff’s motion to amend his complaint is 8 GRANTED to the extent he seeks to sue Defendants in their official capacities for injunctive 9 relief only. 10 IT IS FURTHER ORDERED that Plaintiff’s motion to amend his complaint is 11 GRANTED to the extent he seeks to add Count Four, but only to the extent that Count Four is not 12 otherwise inconsistent with this order.2 13 IT IS RECOMMENDED that Plaintiff’s motion to amend his complaint be DENIED to 14 the extent he seeks to add Gilmore as a Defendant. 15 IT IS FURTHER RECOMMENDED that Plaintiff’s motion to amend his complaint be 16 DENIED to the extent it seeks to add Carson City as a defendant. 17 IT IS FURTHER RECOMMENDED that Plaintiff’s motion to amend his complaint be 18 DENIED to the extent it seeks to add claims against Howell, Gentry and Dzurenda. 19 20 21 22 23 24 25 26 27 2 Again, to the extent Plaintiff attempts to bring claims against Gilmore, Carson City, Howell, | NOTICE 2 This report and recommendation is submitted to the United States district judge assigned 3 || to this case under 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation 4 || may file a written objection supported by points and authorities within fourteen days of being 5 || served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely 6 || objection may waive the right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153, 7 || 1157 (9th Cir. 1991). 8 9 10 DATED: August 31, 2020 11 12 Sx Les Ar Feo, BRENDA WEKSLER 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28