1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA LAWRENCE LATHAM, Case No.: 20-cv-2177-LAB-BGS
12 Plaintiff, ORDER: 13 v. (1) OVERRULING 14 F. ARMENTA; et al., PLAINTIFF’S OBJECTIONS, 15 Defendants. [Dkt. 79];
16 (2) ADOPTING THE REPORT 17 AND RECOMMENDATION IN FULL, [Dkt. 72]; and 18
19 (3) DENYING PLAINTIFF’S 20 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND 21 MOTION TO AMEND THE 22 PRETRIAL ORDER, [Dkt. 66, 68]
23 On November 5, 2020, Plaintiff Joshua Lawrence Latham, a state prisoner 24 proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. 25 (Dkt. 1). The Court screened Latham’s Complaint pursuant to 28 U.S.C. § 1915A 26 and dismissed the Complaint without prejudice and with leave to amend. (Dkt. 29). 27 On December 27, 2021, Latham filed an Amended Complaint. (Dkt. 30). The Court 28 screened Latham’s Amended Complaint pursuant to § 1915A and dismissed all 1 claims except the claims for violation of procedural due process under the 2 Fourteenth Amendment in connection with his involuntary psychiatric transfers 3 against Defendants F. Armenta, Daniel Saltzman, M. Val Valaskantijis, Maria Diaz, 4 and Beltran (collectively, “Defendants”). (Dkt. 41). Defendants filed their Answer 5 on February 16, 2023. (Dkt. 51). 6 On June 25, 2023, Latham mailed his motion for leave to file a Second 7 Amended Complaint (“SAC”) asserting twelve claims and including forty-eight 8 defendants. (Dkt. 66, 66-1). Of the twelve claims, “Count 12” is the only one that 9 isn’t asserted in his Amended Complaint or original Complaint. Latham argues he 10 should be allowed to amend the complaint because he has newly discovered 11 evidence that suggests officers were in fact operating a microwave weapon. 12 (Dkt. 66-4 at 2). On June 27, 2023, Latham mailed his motion to amend the pretrial 13 order. (Dkt. 68). Again, based on the newly discovered evidence, Latham argues 14 the pretrial order should be amended so he has an opportunity to add in additional 15 allegations and defendants. (Dkt. 68 at 2). Defendants responded to Latham’s 16 motion for leave on July 21, 2023. (Dkt. 69). 17 Both these motions were referred to Magistrate Judge Bernard G. Skomal 18 who, on August 22, 2023, issued his report and recommendation (“R&R”). 19 (Dkt. 72). The R&R set forth a thorough account of the procedural history, relevant 20 law for granting leave to amend a complaint based on new evidence or amending 21 a pretrial scheduling order, and analysis of Latham’s arguments, and 22 recommended denying both motions. (Id.). Latham timely objected to Judge 23 Skomal’s recommendation. (Dkt. 79). For the following reasons, the Court 24 OVERRULES Latham’s objections and ADOPTS IN FULL Judge Skomal’s R&R. 25 “A judge of the court may accept, reject, or modify, in whole or in part, the 26 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 27 636(b)(1). The “statute makes it clear that the district judge must review the 28 magistrate judge’s findings and recommendations de novo if objection is made, 1 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2 2003) (en banc) (emphasis in original); see also 28 U.S.C. § 636(b)(1)(C). 3 On September 5, 2023, Latham filed his objections to Judge Skomal’s R&R. 4 (Dkt. 79). He first argues that Judge Skomal’s recommendation that the claims 5 involving use of force with radiation with an illegal microwave weapon are frivolous 6 and amendment futile is clearly erroneous and contrary to law. (Id. at 1–4). Latham 7 cites to two cases to support his position: Denton v. Hernandez, 504 U.S. 25 (1992) 8 and Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1984). In Denton, the Supreme 9 Court ultimately determined that district courts are in the best position to determine 10 which claims are frivolous and reversed the Ninth Circuit’s decision overturning the 11 dismissal of Hernandez’s cases as frivolous. Denton, 504 U.S. at 33. In Johnson, 12 the Fourth Circuit vacated the district court’s dismissal of the case because the 13 district court read the allegations too narrowly by focusing on the disagreement 14 about the type of medication prescribed rather than Johnson being forced to take 15 medication against his will, the latter of which the complaint did state a cognizable 16 claim under § 1983. Johnson, 742 F.2d at 824–25. Neither of these cases help 17 Latham. 18 Latham alleges he provided newly discovered evidence of investigation 19 findings of “exonerated” instead of “unfounded” to suggest that officers are in fact 20 operating a microwave weapon in jail. (Dkt. 79 at 2–3). Latham also described 21 devices installed in jail including antennas on lights and a satellite dish installed on 22 the top of the central control that is capable of sending radio waves as further 23 evidence of use of a microwave weapon against him. (Id. at 4). Judge Skomal 24 already determined that the evidence that Latham refers to doesn’t have the same 25 dates with the incident dates alleged in Latham’s proposed SAC. (Dkt. 72 at 4). 26 Defendants also submitted a declaration that the prison warden’s use of 27 “exonerated” was an administrative error and the responses should have stated 28 “unfounded” instead. (Dkt. 69 at 2-3; 69-1 at Ex. 1). The Court confirms after review 1 of the record that the dates of the investigations provided by Latham in Exhibit B 2 don’t overlap with the dates alleged in the SAC and the prison warden declared 3 use of exoneration was an administrative error. None of the newly discovered 4 evidence Latham references warrants granting him leave to amend or amending 5 the pretrial scheduling order. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 6 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave 7 to amend.”); Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004) 8 (finding district courts have “particularly broad” discretion in denying a subsequent 9 motion to amend when it has previously granted leave to amend). 10 Next, Latham argues that Judge Skomal’s recommendation that the 11 allegations in the SAC are entirely frivolous and lack an arguable basis in law or in 12 fact is clearly erroneous and contrary to law. (Dkt. 79 at 5). Latham relies on the 13 newly discovered evidence of investigation reports using the word “exonerated” to 14 support his contention that officers used a microwave weapon against him and 15 mentions Renick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), where the Ninth 16 Circuit held facts should be construed in the light most favorable to plaintiffs. (Id.). 17 Even construing the facts in favor of Latham’s position, the evidence Latham 18 submitted doesn’t match the dates he alleged the incidents occurred in his SAC. 19 Simply submitting further evidence of investigations between September 7, 2022 20 and February 7, 2023, (see Dkt.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSHUA LAWRENCE LATHAM, Case No.: 20-cv-2177-LAB-BGS
12 Plaintiff, ORDER: 13 v. (1) OVERRULING 14 F. ARMENTA; et al., PLAINTIFF’S OBJECTIONS, 15 Defendants. [Dkt. 79];
16 (2) ADOPTING THE REPORT 17 AND RECOMMENDATION IN FULL, [Dkt. 72]; and 18
19 (3) DENYING PLAINTIFF’S 20 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND 21 MOTION TO AMEND THE 22 PRETRIAL ORDER, [Dkt. 66, 68]
23 On November 5, 2020, Plaintiff Joshua Lawrence Latham, a state prisoner 24 proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. 25 (Dkt. 1). The Court screened Latham’s Complaint pursuant to 28 U.S.C. § 1915A 26 and dismissed the Complaint without prejudice and with leave to amend. (Dkt. 29). 27 On December 27, 2021, Latham filed an Amended Complaint. (Dkt. 30). The Court 28 screened Latham’s Amended Complaint pursuant to § 1915A and dismissed all 1 claims except the claims for violation of procedural due process under the 2 Fourteenth Amendment in connection with his involuntary psychiatric transfers 3 against Defendants F. Armenta, Daniel Saltzman, M. Val Valaskantijis, Maria Diaz, 4 and Beltran (collectively, “Defendants”). (Dkt. 41). Defendants filed their Answer 5 on February 16, 2023. (Dkt. 51). 6 On June 25, 2023, Latham mailed his motion for leave to file a Second 7 Amended Complaint (“SAC”) asserting twelve claims and including forty-eight 8 defendants. (Dkt. 66, 66-1). Of the twelve claims, “Count 12” is the only one that 9 isn’t asserted in his Amended Complaint or original Complaint. Latham argues he 10 should be allowed to amend the complaint because he has newly discovered 11 evidence that suggests officers were in fact operating a microwave weapon. 12 (Dkt. 66-4 at 2). On June 27, 2023, Latham mailed his motion to amend the pretrial 13 order. (Dkt. 68). Again, based on the newly discovered evidence, Latham argues 14 the pretrial order should be amended so he has an opportunity to add in additional 15 allegations and defendants. (Dkt. 68 at 2). Defendants responded to Latham’s 16 motion for leave on July 21, 2023. (Dkt. 69). 17 Both these motions were referred to Magistrate Judge Bernard G. Skomal 18 who, on August 22, 2023, issued his report and recommendation (“R&R”). 19 (Dkt. 72). The R&R set forth a thorough account of the procedural history, relevant 20 law for granting leave to amend a complaint based on new evidence or amending 21 a pretrial scheduling order, and analysis of Latham’s arguments, and 22 recommended denying both motions. (Id.). Latham timely objected to Judge 23 Skomal’s recommendation. (Dkt. 79). For the following reasons, the Court 24 OVERRULES Latham’s objections and ADOPTS IN FULL Judge Skomal’s R&R. 25 “A judge of the court may accept, reject, or modify, in whole or in part, the 26 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 27 636(b)(1). The “statute makes it clear that the district judge must review the 28 magistrate judge’s findings and recommendations de novo if objection is made, 1 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2 2003) (en banc) (emphasis in original); see also 28 U.S.C. § 636(b)(1)(C). 3 On September 5, 2023, Latham filed his objections to Judge Skomal’s R&R. 4 (Dkt. 79). He first argues that Judge Skomal’s recommendation that the claims 5 involving use of force with radiation with an illegal microwave weapon are frivolous 6 and amendment futile is clearly erroneous and contrary to law. (Id. at 1–4). Latham 7 cites to two cases to support his position: Denton v. Hernandez, 504 U.S. 25 (1992) 8 and Johnson v. Silvers, 742 F.2d 823 (4th Cir. 1984). In Denton, the Supreme 9 Court ultimately determined that district courts are in the best position to determine 10 which claims are frivolous and reversed the Ninth Circuit’s decision overturning the 11 dismissal of Hernandez’s cases as frivolous. Denton, 504 U.S. at 33. In Johnson, 12 the Fourth Circuit vacated the district court’s dismissal of the case because the 13 district court read the allegations too narrowly by focusing on the disagreement 14 about the type of medication prescribed rather than Johnson being forced to take 15 medication against his will, the latter of which the complaint did state a cognizable 16 claim under § 1983. Johnson, 742 F.2d at 824–25. Neither of these cases help 17 Latham. 18 Latham alleges he provided newly discovered evidence of investigation 19 findings of “exonerated” instead of “unfounded” to suggest that officers are in fact 20 operating a microwave weapon in jail. (Dkt. 79 at 2–3). Latham also described 21 devices installed in jail including antennas on lights and a satellite dish installed on 22 the top of the central control that is capable of sending radio waves as further 23 evidence of use of a microwave weapon against him. (Id. at 4). Judge Skomal 24 already determined that the evidence that Latham refers to doesn’t have the same 25 dates with the incident dates alleged in Latham’s proposed SAC. (Dkt. 72 at 4). 26 Defendants also submitted a declaration that the prison warden’s use of 27 “exonerated” was an administrative error and the responses should have stated 28 “unfounded” instead. (Dkt. 69 at 2-3; 69-1 at Ex. 1). The Court confirms after review 1 of the record that the dates of the investigations provided by Latham in Exhibit B 2 don’t overlap with the dates alleged in the SAC and the prison warden declared 3 use of exoneration was an administrative error. None of the newly discovered 4 evidence Latham references warrants granting him leave to amend or amending 5 the pretrial scheduling order. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 6 1995) (“Futility of amendment can, by itself, justify the denial of a motion for leave 7 to amend.”); Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004) 8 (finding district courts have “particularly broad” discretion in denying a subsequent 9 motion to amend when it has previously granted leave to amend). 10 Next, Latham argues that Judge Skomal’s recommendation that the 11 allegations in the SAC are entirely frivolous and lack an arguable basis in law or in 12 fact is clearly erroneous and contrary to law. (Dkt. 79 at 5). Latham relies on the 13 newly discovered evidence of investigation reports using the word “exonerated” to 14 support his contention that officers used a microwave weapon against him and 15 mentions Renick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), where the Ninth 16 Circuit held facts should be construed in the light most favorable to plaintiffs. (Id.). 17 Even construing the facts in favor of Latham’s position, the evidence Latham 18 submitted doesn’t match the dates he alleged the incidents occurred in his SAC. 19 Simply submitting further evidence of investigations between September 7, 2022 20 and February 7, 2023, (see Dkt. 79-1), doesn’t support the request to grant leave 21 to amend the complaint or amend the pretrial scheduling order. 22 The Court finds there’s no basis to grant Latham leave to amend and no 23 good cause to amend the pretrial scheduling order because his allegations are 24 entirely frivolous and without any basis in fact or law. See Chappel v. Lab’y Corp. 25 of Am., 232 F.3d 719, 725–26 (9th Cir. 2000) (“A district court acts within its 26 discretion to deny leave to amend when amendment would be futile, when it would 27 cause undue prejudice to the defendant, or when it is sought in bad faith.”); 28 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609–10 (9th Cir. 1992) 1 ||(setting forth “good cause” requirement to modify a scheduling order). The Court, 2 ||therefore, (1) OVERRULES Latham’s objections, (Dkt. 79); (2) ADOPTS IN FULL 3 || Judge Skomal’s R&R, (Dkt. 72); and (3) DENIES Latham’s motions, (Dkt. 66, 68). 4 IT IS SO ORDERED. 5 6 || Dated: February 2, 2024 (sm / A. (4, WY 7 Honorable Larry Alan Burns 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28