1 2 3 4 5 6 7 10 11 JOHN HARDNEY, Case No. 2:16-cv-00172-KJM-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 R. WARREN, et al., 15 Defendants. 16 17 Plaintiff John Hardney is a state prisoner proceeding without counsel in this action 18 brought under 42 U.S.C. § 1983. He proceeds on a first amended complaint wherein he alleges 19 that defendant Brazil used excessive force against him and that defendant Kumeh was 20 deliberately indifferent to his serious medical needs by not providing medical treatment after 21 witnessing other staff use force against him. Pending before me is plaintiff’s motion for leave to 22 amend his pleading. ECF No. 154. Defendants oppose the motion. ECF No. 160. As explained 23 below, I will deny plaintiff’s motion. 24 Background 25 Plaintiff initiated this case in January 2016. ECF No. 1. Following a dismissal pursuant 26 to 28 U.S.C. § 1915A, ECF No. 7, plaintiff filed a first amended complaint in April 2017. ECF 27 No. 10. Plaintiff alleges that on October 10, 2014, defendant Pogue approached his cell and 28 informed him that a psychiatric nurse, Warren, saw him masturbating “in the cell on the bunk 1 [across] from the officer’s desk.” ECF No. 10 at 8. Plaintiff was then escorted from his cell to 2 the medical clinic where defendants Pogue, Hickman, Almodovar, and several other unnamed 3 officers assaulted him by bashing his head into a window, dislocating his shoulder, slamming him 4 to the floor, and placing weight on his supine body. Id. at 8-9. Plaintiff claims that defendant 5 Kumeh, a vocational nurse, witnessed these events, ignored his cries for help, and falsely 6 documented that plaintiff had not sustained injuries during the altercation. Id. After these events, 7 plaintiff alleges that defendant Brazil subjected him to a second incident of excessive force by 8 bending his arm during the escort back to a cell. Id. at 9-10. 9 After the October incident, plaintiff received a Rules Violation Report for indecent 10 exposure. See ECF No. 41 at 3. He was also charged in the Amador County Superior Court with 11 one count of resisting arrest / threatening an officer and two counts of indecent exposure.1 ECF 12 No. 42 at 5-6. Due to the pending state criminal proceedings, this case was stayed in June 2018. 13 ECF No. 50. Plaintiff was eventually convicted on all three counts, ECF No. 75-1 at 600, and he 14 was sentenced in May 2019 to 25 years to life on the first count of resisting and 180 days 15 concurrent on each of the indecent exposure counts, id. at 641-42. In July 2019, the stay in this 16 case was lifted, and defendants were directed to file a responsive pleading. ECF No. 73. 17 Defendant Brazil filed an answer in August 2019. ECF No. 74. The remaining 18 defendants filed a motion to dismiss pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). ECF 19 No. 75. In January 2020, defendants Pogue, Hickman, and Almodovar were dismissed pursuant 20 to Heck. ECF No. 83. Defendant Kumeh filed an answer in February 2020, and a discovery and 21 scheduling order issued, setting a deadline of June 2020 for plaintiff to amend the complaint. See 22 ECF Nos. 87 & 89. 23 On January 9, 2021, defendants Brazil and Kumeh moved for summary judgment. ECF 24 No. 135. During the pendency of my recommendation to deny defendants’ motion, plaintiff filed 25 the instant motion to amend his complaint in January 2023. See ECF Nos. 152 & 154. In March 26 2023, the district judge adopted the recommendation to deny the motion for summary judgment 27 1 One of the indecent exposure counts was for conduct unrelated to the claims found 28 cognizable in this case. ECF No. 42 at 6. 1 and referred the matter back to me to rule on plaintiff’s motion to amend. ECF No. 158. 2 Plaintiff’s Motion to Amend 3 Plaintiff moves to amend on the ground that in August 2021, the California Court of 4 Appeal reversed his felony conviction for resisting on the ground that the trial court erred by 5 failing to instruct on a lesser included offense. ECF No. 154 at 6-11. The state appellate court 6 ultimately reduced the felony to a misdemeanor and struck one of the indecent exposure counts. 7 Id. at 11-15. With those modifications to his convictions, plaintiff seeks to re-add Pogue, 8 Hickman, and Almodovar, who were previously dismissed pursuant to Heck on the resisting 9 count, and to add Ngo and Warren, whose separate claims led to plaintiff being charged with the 10 two counts of indecent exposure. Plaintiff also seeks to assert claims relating to the prosecution 11 of his criminal case and to add the following as defendants: Amador County, the Secretary of the 12 California Department of Corrections, and several attorneys affiliated with the California 13 Attorney General’s Office. 14 Defendants oppose. ECF No. 160. They argue that the deadline to amend pleadings has 15 already expired by three years, that plaintiff was not diligent in moving to amend, that 16 amendment would be futile, and that amendment would prejudice them. 17 Legal Standard 18 Federal Rule of Civil Procedure 15(a) provides: 19 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 20 (A) 21 days after serving it, or 21 (B) if the pleading is one to which a responsive pleading is 22 required, 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss under Rule 12(b), (c), or (f), 23 whichever is earlier. 24 (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s 25 leave. The court should freely give leave when justice so requires. 26 Fed. R. Civ. P. 15(a). 27 Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments 28 and, in general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. 1 Mateer, 42 F.3d 561, 566 (9th Cir. 1994); cf. id. (an attempt to amend a complaint, which would 2 require amendment of scheduling order under Fed. R. Civ. P. 16, must be based upon good 3 cause). “In the absence of any apparent or declared reason—such as undue delay, bad faith or 4 dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of 5 allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules 6 require, be ‘freely given.’” Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012) 7 (citations omitted). 8 Discussion 9 Several factors weigh against granting plaintiff’s motion for leave to amend. One is that 10 plaintiff was previously granted leave to amend the complaint, and he has been proceeding on 11 that amended pleading since 2017. A district court’s discretion to deny leave to amend is 12 particularly broad where the plaintiff has previously filed an amended complaint. Wagh v. Metris 13 Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003); Ferdik v. Bonzelet,
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1 2 3 4 5 6 7 10 11 JOHN HARDNEY, Case No. 2:16-cv-00172-KJM-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 R. WARREN, et al., 15 Defendants. 16 17 Plaintiff John Hardney is a state prisoner proceeding without counsel in this action 18 brought under 42 U.S.C. § 1983. He proceeds on a first amended complaint wherein he alleges 19 that defendant Brazil used excessive force against him and that defendant Kumeh was 20 deliberately indifferent to his serious medical needs by not providing medical treatment after 21 witnessing other staff use force against him. Pending before me is plaintiff’s motion for leave to 22 amend his pleading. ECF No. 154. Defendants oppose the motion. ECF No. 160. As explained 23 below, I will deny plaintiff’s motion. 24 Background 25 Plaintiff initiated this case in January 2016. ECF No. 1. Following a dismissal pursuant 26 to 28 U.S.C. § 1915A, ECF No. 7, plaintiff filed a first amended complaint in April 2017. ECF 27 No. 10. Plaintiff alleges that on October 10, 2014, defendant Pogue approached his cell and 28 informed him that a psychiatric nurse, Warren, saw him masturbating “in the cell on the bunk 1 [across] from the officer’s desk.” ECF No. 10 at 8. Plaintiff was then escorted from his cell to 2 the medical clinic where defendants Pogue, Hickman, Almodovar, and several other unnamed 3 officers assaulted him by bashing his head into a window, dislocating his shoulder, slamming him 4 to the floor, and placing weight on his supine body. Id. at 8-9. Plaintiff claims that defendant 5 Kumeh, a vocational nurse, witnessed these events, ignored his cries for help, and falsely 6 documented that plaintiff had not sustained injuries during the altercation. Id. After these events, 7 plaintiff alleges that defendant Brazil subjected him to a second incident of excessive force by 8 bending his arm during the escort back to a cell. Id. at 9-10. 9 After the October incident, plaintiff received a Rules Violation Report for indecent 10 exposure. See ECF No. 41 at 3. He was also charged in the Amador County Superior Court with 11 one count of resisting arrest / threatening an officer and two counts of indecent exposure.1 ECF 12 No. 42 at 5-6. Due to the pending state criminal proceedings, this case was stayed in June 2018. 13 ECF No. 50. Plaintiff was eventually convicted on all three counts, ECF No. 75-1 at 600, and he 14 was sentenced in May 2019 to 25 years to life on the first count of resisting and 180 days 15 concurrent on each of the indecent exposure counts, id. at 641-42. In July 2019, the stay in this 16 case was lifted, and defendants were directed to file a responsive pleading. ECF No. 73. 17 Defendant Brazil filed an answer in August 2019. ECF No. 74. The remaining 18 defendants filed a motion to dismiss pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). ECF 19 No. 75. In January 2020, defendants Pogue, Hickman, and Almodovar were dismissed pursuant 20 to Heck. ECF No. 83. Defendant Kumeh filed an answer in February 2020, and a discovery and 21 scheduling order issued, setting a deadline of June 2020 for plaintiff to amend the complaint. See 22 ECF Nos. 87 & 89. 23 On January 9, 2021, defendants Brazil and Kumeh moved for summary judgment. ECF 24 No. 135. During the pendency of my recommendation to deny defendants’ motion, plaintiff filed 25 the instant motion to amend his complaint in January 2023. See ECF Nos. 152 & 154. In March 26 2023, the district judge adopted the recommendation to deny the motion for summary judgment 27 1 One of the indecent exposure counts was for conduct unrelated to the claims found 28 cognizable in this case. ECF No. 42 at 6. 1 and referred the matter back to me to rule on plaintiff’s motion to amend. ECF No. 158. 2 Plaintiff’s Motion to Amend 3 Plaintiff moves to amend on the ground that in August 2021, the California Court of 4 Appeal reversed his felony conviction for resisting on the ground that the trial court erred by 5 failing to instruct on a lesser included offense. ECF No. 154 at 6-11. The state appellate court 6 ultimately reduced the felony to a misdemeanor and struck one of the indecent exposure counts. 7 Id. at 11-15. With those modifications to his convictions, plaintiff seeks to re-add Pogue, 8 Hickman, and Almodovar, who were previously dismissed pursuant to Heck on the resisting 9 count, and to add Ngo and Warren, whose separate claims led to plaintiff being charged with the 10 two counts of indecent exposure. Plaintiff also seeks to assert claims relating to the prosecution 11 of his criminal case and to add the following as defendants: Amador County, the Secretary of the 12 California Department of Corrections, and several attorneys affiliated with the California 13 Attorney General’s Office. 14 Defendants oppose. ECF No. 160. They argue that the deadline to amend pleadings has 15 already expired by three years, that plaintiff was not diligent in moving to amend, that 16 amendment would be futile, and that amendment would prejudice them. 17 Legal Standard 18 Federal Rule of Civil Procedure 15(a) provides: 19 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: 20 (A) 21 days after serving it, or 21 (B) if the pleading is one to which a responsive pleading is 22 required, 21 days after service of a responsive pleading or 21 days after service of a motion to dismiss under Rule 12(b), (c), or (f), 23 whichever is earlier. 24 (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s 25 leave. The court should freely give leave when justice so requires. 26 Fed. R. Civ. P. 15(a). 27 Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments 28 and, in general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. 1 Mateer, 42 F.3d 561, 566 (9th Cir. 1994); cf. id. (an attempt to amend a complaint, which would 2 require amendment of scheduling order under Fed. R. Civ. P. 16, must be based upon good 3 cause). “In the absence of any apparent or declared reason—such as undue delay, bad faith or 4 dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of 5 allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules 6 require, be ‘freely given.’” Hall v. City of Los Angeles, 697 F.3d 1059, 1073 (9th Cir. 2012) 7 (citations omitted). 8 Discussion 9 Several factors weigh against granting plaintiff’s motion for leave to amend. One is that 10 plaintiff was previously granted leave to amend the complaint, and he has been proceeding on 11 that amended pleading since 2017. A district court’s discretion to deny leave to amend is 12 particularly broad where the plaintiff has previously filed an amended complaint. Wagh v. Metris 13 Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 14 1992). 15 I also find that plaintiff has unreasonably delayed seeking amendment. Generally, courts 16 consider whether “the moving party knew or should have known of the facts and theories raised 17 by the amendment in the [proposed amended] pleading” in evaluating whether there was undue 18 delay. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1388 (9th Cir. 1990). Courts may also 19 consider whether the moving party is justified in their delay. Id. Here, plaintiff knew of the 20 factual basis of his proposed amendment in August 2021 when the California Court of Appeal 21 reduced his felony conviction for resisting to a misdemeanor and reversed his conviction on one 22 of the indecent exposure counts. Yet plaintiff did not move to amend until nearly one and a half 23 years later.2 In response to this argument, plaintiff states that he waited “only” 17 months to file 24 the instant motion; he does not otherwise explain the delay. ECF No. 161 at 4; cf. Jackson, 902 25 U.S. at 1388 (holding that a 7-month delay in moving to amend was “inexplicable and 26
27 2 Plaintiff did file a second amended complaint in July 2022 but did not seek leave to amend as required under the Local Rules and the Federal Rules of Civil Procedure. See ECF 28 No. 148. 1 unjustified”). 2 I further find that amendment would be futile. A district court should deny leave to 3 amend on futility grounds if “it appears beyond doubt that the plaintiff’s proposed amended 4 complaint would not remedy the deficiencies in the previous complaint.” Adam v. Hawaii, 235 5 F.3d 1160, 1164 (9th Cir. 2001). Put differently, futility of amendment may mean that it is not 6 factually possible for plaintiff to amend the complaint to cure the deficiencies. Schmier v. U. S. 7 Ct. of Appeals, 279 F.3d 817, 824 (9th Cir. 2002). 8 In the proposed complaint, as in the operative complaint, plaintiff alleges that Pogue and 9 Hickman used excessive force against him with no provocation and that Almodovar witnessed the 10 assault but failed to intervene. See ECF No. 155 at 11-12. This court previously compared 11 plaintiff’s allegations with the evidence presented at trial: 12 At trial, the prosecution presented evidence that, on October 10, 2014, a psychiatric technician observed plaintiff masturbating in his 13 cell and reported that action to defendant Pogue. The prosecution also presented evidence that defendants Pogue and Hickman 14 escorted plaintiff to the medical clinic after the technician alerted them to plaintiff’s conduct. The prosecution then presented 15 testimony from defendant Pogue that, at the clinic and once a medical evaluation of plaintiff was underway, plaintiff attempted to 16 pull away from the officer. Pogue testified that he gave plaintiff several verbal commands to stop pulling away, but the latter did not 17 comply. He further testified that, once plaintiff refused to comply with his commands, he used his body weight to press plaintiff 18 against the wall and regain compliance. Pogue testified that, after the medical evaluation, plaintiff was escorted to the program office 19 where force was again necessary—this time with assistance from defendant Hickman—to subdue a physically resisting plaintiff. The 20 foregoing tracks the arc of plaintiff’s allegations: on October 10, 2014 he was accused by a technician of masturbating in his cell, he 21 was escorted by officers to the medical clinic and then to the program office, and force was employed at both locations. 22 Obviously, plaintiff’s allegations diverge insofar as he claims that the force deployed against him was excessive and wholly 23 unnecessary, but the incident referenced is unambiguously the same. 24 25 ECF No. 82 at 5-6 (internal citations omitted). In a footnote, the court observed that 26 There is no indication that separate factual contexts exist between the conduct leading to plaintiff’s conviction and that which gives 27 rise to the immediate section 1983 claim. That is, there is no 28 viable argument that the use of excessive force relevant to this civil 1 case occurred before or after the conduct on which his criminal conviction was based. Indeed, as defendants point out, the operative complaint alleges that plaintiff did nothing to merit the 3 use of any force whatsoever on the day in question. 4 | id. 5 On appeal following plaintiffs conviction under California Penal Code section 69, the 6 || state appellate court held that California Penal Code section 148(a)(1), a misdemeanor, is a lesser 7 | included offense and that the jury should have been instructed thereon. ECF No. 160-1 at9. A 8 | conviction under both statutes required a finding that plaintiff “knowingly resist[ed], by the use of 9 | force or violence, such officer, in the performance of his duty.” ECF No. 160-1 at 9. The jury 10 | instructions for both statutes explain that a peace officer is not performing his or her duties if he 11 | or she is using excessive force. Compare CALCRIM 2652 with CALCRIM 2656. 12 Here, then, even though plaintiffs offense was reduced from a felony under section 69 to 13 || a misdemeanor under section 148(a)(1), it remains that success in this case—i.e., a finding that 14 | excessive force was used—would necessarily imply the invalidity of his conviction under section 15 | 148(a)(1), which required a finding that the officers did not use excessive force. Heck therefore 16 | continues to bar Pogue, Hickman, and Almodovar from this suit. 17 Plaintiff's proposed claim against Warren and Ngo is similarly futile. Plaintiff accuses 18 | them of making false allegations of indecent exposure. See ECF No. 155 at 13-14. But as 19 | plaintiff was informed when he asserted this claim in the operative complaint, a false accusation 20 | of acrime does not in and of itself support a claim under § 1983. ECF No. 16 at 2. 21 Accordingly, it is hereby ORDERED that plaintiff's motion for leave to amend, ECF No. 22 | 154, is denied. 23 IT IS SO ORDERED. 25 ( — Dated: _ July 13, 2023 q-—— 26 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 28
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