Joshua v. Oliver

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Karl Joshua, 2:23-cv-01087-MMD-MDC 4 Plaintiff, ORDER GRANTING MOTION TO AMEND 5 vs. 6 Ronald Oliver, et al., 7 Defendants. 8 Pending before the Court is pro se plaintiff Karl Joshua’s Motion for Leave to File Second 9 Amended Complaint (“Motion to Amend”) (ECF No. 35) and Motion for Leave to File Excess Pages 10 (ECF No. 47). For the reasons stated below, the Court GRANTS the Motion to Amend. 11 DISCUSSION 12 I. BACKGROUND 13 This is a civil action arising under 42 U.S.C. § 1983. See ECF No. 6. Plaintiff initially filed this 14 action on July 13, 2023. Plaintiff filed a First Amended Complaint before the Court issued a screening 15 order on his original complaint. ECF No. 6. The Court screened plaintiff’s First Amended Complaint 16 and found plaintiff plausibly pled First, Fourth and Eighth Amendment violation claims. See ECF Nos. 17 6, 13. Plaintiff was allowed to proceed on his First Amendment retaliation claim, a Fourth Amendment 18 unreasonable strip search claim, Eighth Amendment excessive force claims, and Eighth Amendment 19 medical indifference claims. ECF Nos. 6, 13. More specifically, the screening order stated:

20 It is [] ordered that the First Amendment retaliation claim may proceed against J. Pena, Portilla, Leon Dahiran, Rodney Jefferson, Thurston Moore, R. Cazares, Ronald 21 Oliver, and James Scalley. It is further ordered that the Fourth Amendment harassing strip-search claim 22 may proceed against Portilla, Rodney Jefferson, Thurston Moore, Ronald Oliver, and 23 James Scalley. It is further ordered that the Eighth Amendment excessive-force claim regarding 24 the October 18, 2022, incident may proceed against R. Cazares, Ronald Oliver, and James Scalley. 25 It is further ordered that the Eighth Amendment excessive-force claim regarding 1 the undated gassing incident may proceed against R. Cazares, Banclari, Finley, Ronald Oliver, and James Scalley. 2 […] It is further ordered that the Eighth Amendment medical-indifference claim 3 regarding chronic conditions may proceed against J. Pena, Portilla, Sanchez, Ronald 4 Oliver, and James Scalley. This claim may also proceed against the John Doe officer and medical staff when Joshua learns their true names and moves to substitute them as 5 defendants in this action. It is further ordered that the Eighth Amendment medical-indifference claim 6 regarding injuries may proceed against Cazares and Finley. This claim may also proceed against medical staff when Joshua learns their true names and moves to substitute them as 7 defendants in this action. 8 ECF No. 13 at 21-22. 9 The Court dismissed some of plaintiff’s claims with leave to amend and gave plaintiff 30-days to 10 file an amended complaint. ECF No. 21-23. The Court also dismissed a few defendants but did so 11 without prejudice. See ECF No. 13 at 22 (“…James Dzurenda, Patrick Moreda, Jay Barth, Benjamin 12 Estill, Garcia, Gomez, Nurse Jamie, and Rodriguez are dismissed without prejudice from this action.”). 13 Plaintiff did not file an amended complaint and the Court allowed plaintiff to proceed on the above 14 claims. Thereafter, the case was stayed pending the Early Mediation Conference. ECF No. 15. The 15 Court lifted the stay after parties failed to settle and the case proceeded on normal litigation track. See 16 ECF Nos. 19, 21. On August 20, 2024, the Court entered a Discovery Scheduling Order. See ECF No. 17 29. 18 Defendants filed their Answer to the First Amended Complaint on August 16, 2024. ECF No. 28. 19 Plaintiff now seeks to file a Second Amended Complaint. ECF No. 35. Plaintiff seeks to add over 20 20 new defendants and at least three new causes of action. Id. In response to plaintiff’s Motion (ECF No, 21 35), defendants assert that it is the Court’s obligation to screen plaintiff’s proposed Second Amended 22 Complaint. ECF No. 48. Defendants’ position is not reasonable and, more importantly, defendants failed 23 to meet their burden under LR 7-2(d), FRCP 15, and Desertrain v. City of Los Angeles, 754 F.3d 1147, 24 1154 (9th Cir. 2014) and its progeny. 25 // 1 II. LEGAL STANDARD 2 Pursuant to Rule 15 of the Federal Rules of Civil Procedure, once a party has amended its 3 pleadings as a matter of course, subsequent amendments are only permitted “with the opposing party’s 4 written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 provides that “[t]he court should 5 freely give leave when justice so requires.” Id. Generally, the Ninth Circuit has held that Rule 15(a) 6 should be “applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 7 1051 (9th Cir. 2003). “Five factors are taken into account to assess the propriety of a motion for leave to 8 amend: bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the 9 plaintiff has previously amended the complaint.” Desertrain,, 754 F.3d at 1154 (citing Johnson v. 10 Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004)); see also Eminence Capital, LLC, 316 F.3d at 1052 11 (“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 12 deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of 13 allowance of the amendment, futility of amendment, etc.”) (citing Foman v. Davis, 371 U.S. 178, 182 14 (1962). “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15—to 15 facilitate decision on the merits, rather than on the pleadings or technicalities.” Roth v. Garcia Marquez, 16 942 F.2d 617, 628 (9th Cir. 1991) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). 17 Ultimately, there is considerable deference to amendment and the analysis “should be performed with all 18 inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 19 1999). 20 III. ANALYSIS 21 A. The PLRA Only Mandates Early Judicial Screening 22 As stated above, plaintiff seeks to include additional defendants and claims in his proposed 23 Second Amended Complaint. Defendants do not actually oppose the motion, addressing the standards 24 under Rule 15 or Desertrain, 754 F.3d at 1154. See e.g., ECF No. 48 at 12:14-18. Instead, defendants’ 25 attempt to shift the burden upon the Court, arguing that the Court is “obligated” to screen plaintiff’s 1 proposed Second Amended Complaint per the Prison Litigation Reform Act. See generally ECF No. 48. 2 Defendants’ argument and position is not reasonable and falls within the failure to respond standard 3 under LR 7-2(d). Foremost, defendants’ argument is contrary to the numerous authorities from this1 4 District which hold that the Prison Litigation Reform Act (“PLRA”) does not obligate the Court to 5 screen every proposed amended complaint. See Anderson v. Nevada, 2023 U.S. Dist. LEXIS 141077, *3 6 (D. Nev. March 8, 2023) (“However, screening is not required, either explicitly or implicitly, [] every 7 time a plaintiff seeks to amend the complaint.”) (internal quotations and citations omitted); Taylor v. 8 Nevada, 2023 U.S Dist. LEXIS 202703 (D. Nev. Nov. 9, 2023); Rodriguez v. Dzurenda, 2019 U.S. Dist. 9 LEXIS 251442, *2 (D. Nev. June 14, 2019) (“At this stage of the case, the court will not screen 10 plaintiff's amended complaint, nor is it mandated to do so.”); Olausen v. Murguia, 2014 U.S. Dist. 11 LEXIS 159941, *6 (D. Nev. Nov. 12, 2014) (“Just because a court has authority to dismiss the case at 12 any time does not mean it is compelled to re-screen every proposed amended complaint filed after the 13 initial pre-answer screening.”); Caballero v. Arans, 2020 U.S. Dist. LEXIS 113850, *5 (D. Nev. June 14 29, 2020) (“The screening provision does not require a court, either explicitly or implicitly, to screen 15 every time a plaintiff seeks to amend the complaint.”). Caballero stated further that 28 USCS § 16 1915A(a) "could not be clearer as to the timing of the mandatory screening. A court must screen 'before 17 docketing, if feasible or, in any event, as soon as practicable after docketing.'" Id., 2020 U.S. Dist. 18 LEXIS 113850, at *5 (emphasis added). This case is long past the docketing stage, and defendants have 19 previously answered plaintiff’s prior complaint and a discovery scheduling order has been entered. See 20 ECF Nos. 28 and 29. 21 22 23 1 To be sure, defendants do not cite to any District of Nevada authorities that supports their argument that the PLRA 24 mandates screening every proposed amended complaint. As to the authorities defendants cited, they are unclear whether the rescreening occurred during the pre-answer stage or after defendants have answered. In any event, screening an amended complaint after a court gives leave to amend is different from the scenario where defendants have appeared, answered the 25 original complaint, and thereafter the plaintiff seeks further amendment via a motion to amend. See Caballero, 2020 U.S. Dist. LEXIS 113850, at *7. Indeed, the Courts in this district have denied similar motions to screen filed by defense counsel 1 over the past several years. 2 In Anderson v. Nevada2, the defendants (represented by the Nevada Office of the Attorney 3 4 General) (“OAG”) filed a similar Motion for Screening (ECF No. 51). Case No. 2:21-cv-00514-APG- 5 EJY, 2023 U.S. Dist. LEXIS 141077 (D. Nev. March 8, 2023). Defendants in Anderson (who had not 6 filed an answer to the original complaint as the defendants here) similarly argued that PLRA mandated 7 screening. The Court disagreed, holding that the PLRA does not mandate screening every time plaintiff 8 files an Amended Complaint. Id., 2023 U.S. Dist. LEXIS 141077 at *4 (“screening is not required, 9 ‘either explicitly or implicitly, ... every time a plaintiff seeks to amend the complaint.’”). 10 The OAG also raised similar arguments in Olausen v. Murguia, when they objected to the 11 Magistrate Judge’s Report and Recommendation that rejected their position that the Court is obligated to 12 screen every proposed amended complaint under the PLRA. Id., Case No. 2:13-cv-00388-MMD-VPC 13 at ECF No. 91. The District Judge denied defendants’ objection and (again) confirmed this District’s 14 position that Courts are not obligated to screen every proposed amended complaint. The District Judge 15 clearly and unambiguous stated: 16 17 Defendants cite to three district court cases from other districts, two of which are unpublished…to show that these courts confirm that, pursuant to 18 28 U.S.C. § 1915A, an amended complaint must undergo judicial screening…. The Court respectfully disagrees with the court in Defendants' 19 cited decision of Zimmerman v. Hoard, 5 F. Supp. 2d 633, 635 (N.D. Ind. 1998), where the court stated that it was required to screen prisoners' 20 proposed amended complaints. To clarify, courts in this district screen complaints and amended complaints at the pre-answer stage. In cases 21 where the court dismisses the initial complaint with leave to amend, the court would then screen the proposed amended complaint to determine 22 what claims may proceed and whether a defendant is compelled to respond. 23 This practice falls within the PLRA's mandate for ‘early judicial screening’…. To be sure, this Court has screened subsequent proposed 24 amended complaints after defendants have made an appearance, but the 25

2 See United States District Court, District of Nevada, Case No. 2:21-cv-00514-CDS-EJY decision to engage in post-answer court screening is made on a case-by- 1 case basis. Thus, the fact that some of Defendants' cited decisions refer to screening of an amended complaint does not necessarily show that 2 the screening court viewed its duty to screen as mandatory and not discretionary. Nor do those decisions require this Court to screen 3 Plaintiff's proposed amended complaint. 4 **** Defendants also rely on 42 U.S.C. § 1997e(c)(1) to support their argument 5 that post-answer screening is mandatory in this case.…However, § 1997e(c)(1) does not address — let alone compel — post-answer screening. 6 It gives a court the authority to dismiss an action sua sponte; it does not mandate that a court re-screen in response to a motion to amend filed post- 7 answer and mid-litigation. 8 Olausen, 2014 U.S. Dist. LEXIS 159941, at *13-15 (D. Nev. Nov. 12, 2014) (emphasis added). 9 In Taylor v. Nevada3, defendants (again represented by the OAG) filed a Motion to Strike (ECF 10 No. 29) defendants’ amended complaint. Id., Case No., 2:21-cv-02011-RFB-VCF, 2023 U.S Dist. 11 LEXIS 202703 (D. Nev. Nov. 9, 2023). Like the defendants here, the defendants in Taylor argued the 12 Court “must” screen plaintiff’s subsequent pleadings under the PLRA. Compare Defs.’ Motion to Strike 13 at ECF No. 29, pp. 3-5 in Case No., 2:21-cv-02011-RFB-VCF (Taylor) with Defs.’ Opposition in this 14 matter at ECF No. 48, pp. 3-5. The Taylor Court (again) rejected the argument that the Court was 15 required to screen subsequent pleadings and instructed defense counsel to file a motion opposing 16 amendment.

17 I also caution defendants' counsel, however, that if plaintiff files a motion for leave to amend, they must also respond to the motion in the ordinary 18 course. Defendants' counsel argues in its motion to strike that the court 19 must screen amended complaints from prisoners. That is true of prisoner cases in the early stages of litigation, but the court is not obligated to screen 20 the complaint at this late stage in the case. 21 Taylor, 2023 U.S. Dist. LEXIS 202703, at *2. This case is also past the early stages, particularly since 22 defendants answered plaintiff’s prior complaint and a discovery scheduling order has been entered. See 23 ECF Nos. 28 and 29. 24 25

3 See United States District Court, District of Nevada, Case No. 2:21-cv-02011-RFB-MDC 1 Notwithstanding this District Court’s numerous, previous rejections of the defense argument that Ty 66 . »” : : □ 2 || the Court is “obligated” to screen subsequent complaints under the PLRA, and particularly Taylor's 3 || rejection, the defendants here inexplicably restate, almost verbatim the very same arguments that Taylor . 5 . . . . 4 || clearly rejected. Compare Defs.’ Motion to Strike at ECF No. 29, pp. 3-5 in Case No., 2:21-cv-02011- . 5 woe . . . 5 || RFB-VCF (Taylor) with Defs.’ Opposition in this matter at ECF No. 48, pp. 3-5:

3 . . > 5 wae > : Defs.’ Motion to Strike, ECF No.29, in Taylor Defs.’ Opposition in this matter at ECF No.48 B. Taylor's Amended Complaint Must Be Screened B. Joshus’s Amended Complaint Must Be Sorcsensd 8 This Court remains obligated under 28 U.S.C § 1915(e)(2), and 28 U.S.C. § This Court remains obligated under 28 U.S.C § 191 eM), and 28 ULS.C. § □□□□□□□□ 1915(a), and 42 U.S.C § 1997e(e) to screen Taylor's proposed amended complaint and and 42 U.S.C § 1997e(c) to screen Joshua's proposed amended complaint and dismias any 9 dismiss any claims that are frivolous, malicious, fail to adequately state a claim, or Se a eS eareay ees waaay peately ste Atala oeaeele □□□□□ from a Defendant who is immune. “District Courts are required to screen all civil cases seek monetary relief from a Defendant who is immune. “District Courts are required Gis eigenen Peper EEA a eis Seimei Geek hia CTO □□□ □□□□ 10 to sereen all civil cases brought by prisoners, regardless of whether the inmate paid | j, pro se, or is represented by counsel, as [§ 1915A] does not differentiate between civil the full filing fee, is a pauper, is pro se, or is represented by counsel, as [§ 1915A] does actions brought by prisoners.” Ja re Prison Litig. Reform Act, 105 F.3d 1131, 1134 (6th Cir, not differentiate between civil actions brought by prisoners.”2° In Olivas v. Nevada ex. 1997). Ie Ob paso: Mevimabeice: Rok Departincntiag, Carmctnrs, SOGE Gd 1261 □□□□ Cars □□□ □□ 1 1 7 . . the Ninth Circuit noted that it was appropriate to rely on the plain language of the Prison fel Department of Corrections," the Ninth Circuit noted that it was appropriate to rely Litigation Reform Act (PLEA) text when interpreting its provisions. Id_ at 1284; see also on the plain language of the Prison Litigation Reform Act (PLRA) text when | 9, 1 aniesn. Leyoa, 87% F.3d 1021, 1024 (9th Cir. 2009) (relying on the “express language" 12 interpreting its provisions.*” 28 U.S.C. § 1915A(a) provides that courts “shall review. of the PLEA provisions at iasue in that case). 28 U.S.C. § 1915A(a) provides that courts before docketing, if feasible, or in any event, as soon as practicable after dockeling, a ‘shall review, before docketing, if feasible, or in any event, as soon as practicable after 13 complaint in a civil action in which a prisoner seeks redress from a governmental entity ee Se a ee ee es governmental entity or officer or employee of a governmental entity” (emphasis added). In or officer or employee of a governmental entity” (emphasis added). In MeGore v. MeGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), partially overruled an other grounds 14 Wrigglesworth,?* the Sixth Cireuit relied on this language to hold that by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013), the Sixth Circuit relied on this [a] district court is required to screen all civil cases brought by language to hold that- prisoners, regardless of whether the inmate paid the full filing a ty sens fee, is a pauper, is pro se, or is represented by counsel as the fel iabrick court sa remained: to acreen.all civil: cases bronght by □□□□□□□ 15 statute a not differentiate between various civil actions sega less af whether the tomate pala the full Gling foe, tee pamper, □□ peo □□□ brought by prisoners.2! or is represented by counsel as the statute does not differentiate between ¥ Deis I various civil actiona brought by prisoners. It is clear from the text of the PLRA that the purpose for screening is to ensure AfcGore, 114 F.3d at 608 (emphasis added). 1 6 that the claims alleged are not “frivolous” or “malicious,” and also to ensure that they It is clear from the text of the PLRA that the purpose for screening is to ensure that “state a claim upon which relief may be granted.”25 In Jones v. Bock, the Supreme the claims alleged are not “frivolous” or “malicious,” and also to ensure that they “state a 17 Court held that the PLRA “in order to address the large number of prisoner complaints eine apeceey, yo nelle aminy, Beorigeseenbieel ESE AS a LED. as shoe □□□ U.S. 199 (2007), the Supreme Court held that the PLRA “in order to address the large filed in federal court, mandates judicial screening of prisoner complaints” not that the ee number of prisoner complaints filed in federal court, mandates judicial screening of 1 8 Court is only mandated to screen prisoner complaints at the “pre-answer” stage □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ prisoner complaints” not that the Court is onfy mandated to screen prisoner complaints a (emphasis added). While the Court in Nordstrom v. Ryan?" addressed the narrow issue the “pre-answer" stage. While the Court in Nordstrom wv. Ryvan, 762 F_3d 903, 906, 907 4 19 of the Court's screening of a prisoner complaint at the pre-answer stage, they did not nl (th Cir. 2014), addressed the narrow issue of the Court's screening of a prisone address the Court's further requirement to screen amended complaints (emphasis complaint at the pre-auswer stage. they did not address the Court's further requirement t added). The Court in Nordstrom even cites to the purpose of the PLRA, noting that the screen amended complaints. The Court in Nordstrom even cites to the purpose of the PLRA il hat th rpose of ii that the targets of frivol □□□ 20 purpose of § 1914A is “to ensure that the targets of frivolous or malicious suits need se ae SERENE Bs of Erivalous oF □□□□□□□□□□□ suits need not bear the expense of responding.” Jd. at 907 mn. 921; see also Wheeler v. Wexfare ing "22 bear the expense of responding "#0 | rents Sources, Ine., 689 F.3d 680, 681 (7th Cir. 2012). 21 Additionally, the following courts have held, either in published or unpublished Additionally, the following courts have held, either im published or unpublishe: opinions, that amended complaints are required to be screened under the PLRA:** The opinions, that amended complaints are required to be screened under the PLRA:’ Th 22 Eastern District of Tenne North Division:*0 The Eastern District of Wisconsin;#! Eastern District of Tennessee, North Division;? The Eastern District of □□□□□□□□□□□ Th: Western District of Wisconsin;t The Central District of Califormia;5 The Eastern District o The Western District of Wisconsin; The Central District of California;*! The Eastern California;® and The Northern District of Indiana, Hammond Division.? More specifically 23 District of California;*4 and The Northern District of Indiana, Hammond Division.* the Northern District of Indiana case of Zimmerman v. Hoard® states this plain am More specifically, the Northern District of Indiana case of Zimmerman v. Hoard™ . □ commen sense duty most clearly, as it held, unambiguously that § “1915A □□ □ requires the states this plain and common sense duty most clearly, as it held, unambiguously that aonick-te nearnon ceacend ‘ninmeiiiad □□□□□□□□□□□□□□□□□□□□□□□□ octane, 24 § “1915A . .. requires the court to sereen proposed amended complaints submitted by prisoners.”

1 Defendants’ continued reliance on Espinosa v. Stogner, 2017 U.S. Dist. LEXIS 199443 (D. Nev. 2 Dec. 4, 2017) for the proposition that a court is required to screen an amended complaint is also 3 unreasonable. Espinosa addressed screening an amended complaint to determine whether such 4 amendment cured the deficiencies of the original complaint identified in the original screening order. 5 Id., 2017 U.S. Dist. LEXIS 199443, at *2 (“Upon screening, the Court…dismissed the federal claims 6 with leave to amend…. An inspection of the FAC [amended complaint] indicates that Plaintiff did not 7 cure the deficiencies identified in the screening order.”). Indeed, the Espinosa decision identifies such 8 narrow circumstances:

9 The remaining question is whether a district court is required to screen amended complaints…under §§ 1915 and/or 1915A, either generally, or at 10 least where amendment has been required due to a deficiency noted during screening of the original complaint, as here. 11

12 Id., 2017 U.S. Dist. LEXIS 199443, at *3-4 (emphasis added). 13 This distinction has been previously recognized by other District decisions. In Peck v. Nevada, 14 the Magistrate Judge noted that “[t]he Espinosa court held that the Court must screen an amended 15 complaint after the court required the plaintiff to amend due to a deficiency noted during screening of 16 the original complaint.” Id., 2:18-cv-00237-APG-VCF, 2020 U.S. Dist. LEXIS 167960, at *4 (D. Nev. 17 Sep. 14, 2020). In Caballero, the Magistrate Judge similar observed Espinoza’s narrow operation: 18 Next, Mitchell discusses Espinosa v. Stogner, a case in which the District 19 Court held that screening was required in a case where amendment has been required due to a deficiency noted during screening of the original 20 complaint.... Espinosa is distinguishable from the present case, as Caballero was not explicitly granted leave to amend in the original screening order. 21 22 Caballero, 2020 U.S. Dist. LEXIS 113850, at *5-6. See also, e.g., Olausen, 2014 U.S. Dist. LEXIS 23 159941, at *13 (“In cases where the court dismisses the initial complaint with leave to amend, the court 24 would then screen the proposed amended complaint to determine what claims may proceed and whether 25 a defendant is compelled to respond.”). 1 As has been previously summarized, “[c]onstruing the PLRA to require court screening of every 2 amended complaint, regardless of how far a case has progressed would increase, not reduce, the burden 3 on federal courts.” Rodriguez, 2019 U.S. Dist. LEXIS 251442, at *3 (citing Olausen, 2014 U.S. Dist. 4 LEXIS 159941, at 7). 5 It is not reasonable to continue to argue to our District Courts that they are obligated to screen 6 every subsequent complaint under the PLRA. To the extent that it may be occurring, defense counsel 7 must stop filing recycled briefs or portions thereof which repeat such rejected arguments. 8 B. Defendants Failed To Show That This Proposed Complaint Warrants Screening 9 Defendants failed to show the Court should exercise its discretion to screen plaintiffs’ amended 10 complaint. The decision to screen post-answer complaints is discretionary, on a case-by-case basis. 11 See Olausen, 2014 U.S. Dist. LEXIS 159941, at *13-14 (“To be sure, this court has screened subsequent 12 proposed amended complaints after defendants have made an appearance, but this decision to engage in 13 post-answer screening is made on a case-by-case basis.”); see also Caballero, 2020 U.S. Dist. LEXIS 14 113850, at *6-7 (To clarify, courts in this district screen complaints and amended complaints at the pre- 15 answer stage….The decision to engage in post-answer screening is made on a case-by-case basis.”). 16 Defendants did not address’ the Court’s discretion and did not persuade the Court to exercise its 17 discretion to screen plaintiff’s proposed amended complaint. Nor will the Court do so sua sponte. 18 C. Defendants Failed To Comply With LR 7-2(d) 19 LR 7-2(d) provide that “[t]he failure of an opposing party to file points and authorities in 20 response to any motion…constitutes a consent to the granting of the motion.” Id. Defendants’ 21 opposition (ECF No. 48) falls within LR 7-2(d) because defendants attempted to shift their burden 22 opposing plaintiff’s motion and proposed amendment by arguing the Court is obligated to screen 23 plaintiff’s proposed amended complaint, e.g, “Joshua’s second amended complaint is a prime example 24 of why the Court must screen all amended complaints by inmates…..Defendants respectfully request 25 that this court screen this proposed second amended complaint.” See ECF No. 48 at 12-14-18. As 1 discussed above, the Court is not obligated to screen plaintiff’s proposed amended complaint and 2 defendants failed to demonstrate why this matter should be one of the “case-by-case” situations where 3 the Court should exercise its discretion to screen. 4 If defendants intend to file a motion to dismiss in response to plaintiff’s amended complaint, they 5 must do so without relying on the Court to screen the complaint for them at this post-answer stage. 6 IV. NOTICE OF APPEARANCE 7 The Court notes that there is no Acceptance of Service by the Office of the Attorney General for 8 defendants Leon Dahiran and Gerareo Banclari. On August 16, 2024, the Office of the Attorney General 9 filed an Acceptance of Service for several defendants. ECF No. 25. However, the Office of the Attorney 10 General did not accept service on behalf of defendants Dahiran and Banclari. Id. Defendant’s Answer to 11 the Amended Complaint, did not include defendants Dahiran and Banclari. See ECF No. 28. However, 12 in responding to plaintiff’s Motion to Extend Time and several other motions, the Office of the Attorney 13 General responded on behalf of defendants Dahiran and Banclari. See e.g., ECF Nos. 37, 38, 39. It is 14 unclear whether the Office of the Attorney General intends to accept service on behalf of defendants 15 Dahiran and Banclari. Therefore, the Court will Order the Office of the Attorney General to clarify the 16 confusion. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 1 || V. CONCLUSION 2 The Court is not obligated to screen plaintiff's Second Amended Complaint and declines its 3 || discretion to do so. Because defendants have failed to substantively respond to plaintiff's Motion to 4 || Amend, the Court finds good cause to grant the Motion. 5 6 ACCORDINGLY, 7 IT IS ORDERED that: 8 1. The Motion to Amend (ECF No. 35) is GRANTED. 9 2. The Clerk of Court is kindly directed to detach and file plaintiff’s proposed Second Amended 10 Complaint (ECF No. 35-1) on the docket. 11 3. The Motion for Leave to File Excess Pages (ECF No. 47) is GRANTED. 12 4. The Office of the Attorney General is directed to clarify whether it is accepting service on 13 behalf of defendants Dahiran and Banclari, and if so, file a formal Acceptance of Service. 14 DATED this 25" of November 2024. “hy _ 15 ose a IT IS SO ORDERED. LLL 16 fb LX EL. Il 7 Chited Stated/Magi trate Judge 18 NOTICE [y 19 Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and 20 || recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk 21 |! of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal 22 || may determine that an appeal has been waived due to the failure to file objections within the specified 23 |! time. Thomas v. Arn, 474 U.S. 140, 142 (1985). 24 This circuit has also held that (1) failure to file objections within the specified time and (2) 25 || failure to properly address and brief the objectionable issues waives the right to appeal the District

1 Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 2 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 3 Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of any 4 change of address. The notification must include proof of service upon each opposing party’s attorney, 5 or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this rule may 6 result in dismissal of the action.

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