(PC) Johnson v. Frauenheim

• Court: District Court, E.D. California
• Decided: September 1, 2021
• Docket: 1:18-cv-01477
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LACEDRIC WILLIAM JOHNSON, Case No. 1:18-cv-01477-AWI-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON PLAINTIFF’S MOTION TO AMEND, 13 v. GRANTING IN PART AND DENYING IN PART AND DISMISSING CERTAIN 14 FRAUENHEIM, et al., DEFENDANTS

15 Defendants. (ECF No. 42) 16 17 Plaintiff LaCedric William Johnson (“Plaintiff”) is a state prisoner proceeding pro se and 18 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983, against: (1) Defendants 19 Santos, Leon, Benavides, Hill, Salas, Luna, Lopez, Kennedy, Bejinez, and Trinidad for excessive 20 force; (2) Defendants Salas, Bejinez, Trinidad, and Deshazo for violation of Plaintiff’s First 21 Amendment right to free exercise of religion; (3) Defendants Deshazo, Bejinez, Trinidad, and 22 Benavides for unconstitutional conditions of confinement; (4) Defendants Benavides, Bejinez, 23 Deshazo, Hoggard, and Trinidad for deliberate indifference to serious medical needs; and 24 (5) Defendants Espinoza, Luna, and Newton for failure to intervene. 25 I. Procedural Background 26 On October 17, 2019, the Court screened Plaintiff’s complaint and found that while the 27 allegations stated some cognizable claims against certain defendants, other allegations failed to 28 state cognizable claims against other defendants. (ECF No. 8.) Specifically, relevant to the 1 instant motion, the Court found that Plaintiff’s allegations about “responders” emptying 2 numerous cannisters of pepper spray into Plaintiff’s face and “other officers” kicking and 3 stomping Plaintiff’s legs and torso failed to state cognizable claims because Plaintiff failed to link 4 any named defendant to these allegations. (Id. at 18.) Plaintiff was informed that he should 5 identify each involved defendant by name and link each of them to his claim by explaining what 6 each defendant did, or failed to do, that caused a violation of his constitutional rights. (Id.) The 7 Court granted Plaintiff leave to file a first amended complaint to cure the deficiencies identified 8 by the Court’s order, or notify the Court in writing that he was willing to proceed only on the 9 cognizable claims identified by the Court, which would result in his voluntary dismissal of all 10 other defendants and all other claims, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). 11 (ECF No. 8.) 12 Plaintiff filed a notice of his willingness to proceed on the cognizable claims on October 13 28, 2019. (ECF No. 11.) Accordingly, on October 31, 2019, the Court ordered that this action 14 would proceed on Plaintiff’s complaint against: (1) Defendants Santos, Leon, Benavides, Hill, 15 Salas, Luna, Lopez, Kennedy, Bejinez, and Trinidad for excessive force; (2) Defendants Salas, 16 Bejinez, Trinidad, and Deshazo for violation of Plaintiff’s First Amendment right to free exercise 17 of religion; (3) Defendants Deshazo, Bejinez, Trinidad, and Benavides for unconstitutional 18 conditions of confinement; (4) Defendants Benavides, Bejinez, Deshazo, Hoggard, and Trinidad 19 for deliberate indifference to serious medical needs; and (5) Defendants Espinoza, Luna, and 20 Newton for failure to intervene. (ECF No. 12.) All other claims and Defendants Frauenheim, 21 George, Hansen, Liebold, Sharp, Erickson, and Ramirez were dismissed from this action by 22 operation of law pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Id.) 23 Following service of the complaint, Defendants Bejinez, Benavides, Deshazo, Espinoza, 24 Hill, Hoggard, Kennedy, Leon, Lopez, Luna, Newton, Salas, Santos, and Trinidad (collectively, 25 “Defendants”) filed a motion to dismiss on the ground that Plaintiff’s complaint fails to state a 26 cognizable claim for relief because all of Plaintiff’s claims are barred by the applicable statute of 27 limitations. (ECF No. 19.) The undersigned issued findings and recommendations that the 28 motion to dismiss be granted on March 27, 2020. (ECF No. 26.) On August 20, 2020, the 1 assigned District Judge declined to adopt the findings and recommendations, and Defendants’ 2 motion to dismiss was denied. (ECF No. 32.) Plaintiff filed a motion to amend. (ECF No. 35.) 3 In denying the motion to amend, the Court found it appropriate to deny the motion without 4 prejudice and permit Plaintiff to cure the procedural defect by re-filing his motion and including a 5 proposed amended complaint that is “complete in itself without reference to the prior or 6 superseded pleading,” as required by Local Rule 220. (ECF No. 41, p. 5.) 7 Plaintiff then filed the current motion to amend on November 12, 2020, and lodged a 8 proposed amended complaint. (EDF No. 42, 43.) Defendants filed an opposition to the motion 9 on December 4, 2020. (ECF No. 44.) Plaintiff has not filed a reply, and the deadline to do so has 10 expired. The motion is deemed submitted. Local Rule 230(l). 11 II. Parties’ Positions on the Motion to Amend 12 In Plaintiff’s motion, Plaintiff argues that his prison transfers and COVID lockdowns have 13 precluded him from addressing the court’s screening order and he, therefore, filed a notice of 14 willingness to proceed on cognizable claims “in a state of duress.” (ECF No. 42, p. 1.) Plaintiff 15 argues that amendment should be liberally granted. He argues that Defendants have not filed an 16 answer and Plaintiff seeks to clarify his claims and to link defendants to his claims that the 17 Court’s screening order found had not been linked properly. 18 Defendants oppose the motion to amend. Defendants argue the Court screened Plaintiff’s 19 complaint and found cognizable claims. Plaintiff chose not to amend to attempt to cure the 20 noncognizable claims. On October 28, 2019, Plaintiff notified the Court of his willingness to 21 proceed only on the cognizable claims identified by the Court. (ECF No. 11.) The court issued an 22 order noting “Plaintiff’s voluntary dismissal of Defendants Frauenheim, George, Hansen, 23 Liebold, Sharp, Erickson, and Ramirez, and all other claims pursuant to Rule 41(a)(1)(A)(i).” 24 (ECF No. 12.) In the proposed amended complaint, Plaintiff re-adds Defendants Erickson and 25 Ramirez, who were voluntarily dismissed and expands the claims to fourteen defendants. 26 Plaintiff unduly delayed in seeking amendment. He declined the Court’s screening order 27 invitation to amend the complaint and waited a year afterwards to do so. He opposed Defendants’ 28 motion to dismiss rather than amend. He is adding a Defendant Erickson who was not even 1 named in the original complaint.1 Erickson and Ramirez were previously dismissed, have never 2 been served in this action, and the claims should not be added as to them. It has been seven years 3 since the incident, which is the fault of Plaintiff since he indicated he wanted to proceed on the 4 cognizable claims. 5 Defendants ask that if the Court grants the motion to amend, the Court screen the first 6 amended complaint. 7 III. Discussion 8 Rule 15(a) provides that a court “should freely give leave [to amend] when justice so 9 requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has stated:

10 [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies 11 by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought 12 should, as the rules require, be “freely given.”

13 Foman v. Davis, 371 U.S. 178, 182 (1962). The intent of the rule is to “facilitate decision on the 14 merits, rather than on the pleadings or technicalities.” Chudacoff v. Univ. Med. Center of S. Nev., 15 649 F.3d 1143, 1152 (9th Cir. 2011). Consequently, the “policy of favoring amendments to 16 pleadings should be applied with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 17 (9th Cir. 1981). 18 Courts consider five factors in determining whether justice requires allowing amendment 19 under Rule 15(a): “bad faith, undue delay, prejudice to the opposing party, futility of amendment, 20 and whether the plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 21 1067, 1077 (9th Cir. 2004) (citation omitted); Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 22 1995) (citing Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991)). 23 These factors are not of equal weight as prejudice to the opposing party has long been held to be 24 the most critical factor in determining whether to grant leave to amend. Eminence Capital, LLC v. 25 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the 26 consideration of prejudice to the opposing party that carries the greatest weight”); Jackson v. 27

28 1 Defendant Erickson was in fact named in the original complaint. (Doc. 1, p.4.) 1 Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (“Prejudice to the opposing party is the 2 most important factor.”). Absent prejudice, or a strong showing of any of the remaining factors, a 3 presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, 316 4 F.3d at 1052. 5 A. Undue Delay 6 Defendants argue Plaintiff has unduly delayed amending his complaint, seeking to do so a 7 year after it was screened and after several rounds of motions to dismiss. 8 Whether there has been ‘undue delay’ should be considered in the context of (1) the length 9 of the delay measured from the time the moving party obtained relevant facts; (2) whether 10 discovery has closed; and (3) proximity to the trial date.” Wagner v. Cty. of Plumas, No. 2:18- 11 CV-03105-KJM-DB, 2020 WL 820241, at *4 (E.D. Cal. Feb. 19, 2020) (citations omitted). 12 Undue delay, by itself, is not enough to justify denying a motion to amend. Bowles v. Reade, 198 13 F.3d 752, 758 (9th Cir. 1999). Here, the facts underlying the proposed amendment were known by Plaintiff prior to filing 14 the original complaint. Through inartful pleading, Plaintiff was unable to link defendants to the 15 specific conduct in the original complaint. The delay was long, approximately a year, in which 16 Plaintiff had the ability to amend the complaint at any time, indicated his willingness to proceed 17 on cognizable claims, and did not amend when the motion to dismiss was pending. While the 18 delay has been long, discovery has not opened and no trial date has been set. This factor is 19 neutral on whether to amend. 20 B. Prejudice 21 Defendants next argue that allowing Plaintiff to amend the complaint would be 22 prejudicial. 23 Prejudice to the opposing party carries the greatest weight in the Rule 15 analysis. 24 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “In evaluating 25 prejudice courts often consider whether relevant deadlines would have to be continued as a result 26 of the new pleading, the stage of discovery at the time of amendment, the extent to which 27 additional discovery would have to be conducted, and the degree to which amendment may delay 28 1 the proceedings.” Commerce Point Capital, Inc. v. First Data Corp., No. 19-CV-556 W (LL), 2 2020 WL 2991498, at *3 (S.D. Cal. June 4, 2020) (citations omitted). 3 Defendants have not met their burden to demonstrate prejudice if leave to amend is 4 granted as to Defendants. Although the proposed amendment will result in additional discovery, 5 no relevant deadlines will have to be continued, discovery deadlines have not been set and the 6 case is in its early stages. The amendment will not delay the proceedings given that there is no 7 discovery deadline and there has been no trial date. “[T]he mere need for additional discovery, by 8 itself, does not constitute sufficient prejudice under Rule 15 to withhold leave to amend.” See, 9 e.g., Westberg v. FCA US LLC, No. 1:18-cv-01509-BAM, 2019 WL 2547115, at *5 (E.D. Cal. 10 June 20, 2019); Synchronoss Techs., Inc. v. Dropbox Inc., No. 16-cv-00119-HSG, 2019 WL 11 95927, at *3 (N.D. Cal. Jan. 3, 2019). Defendant will have ample time to conduct discovery. This 12 factor therefore weighs in favor of granting leave to amend. 13 However, the Court denies leave to amend as to Defendants Erickson and Ramirez. Defendants contend that Defendants Erickson and Ramirez were dismissed and given the length 14 of time since the incident at issue, they are surely prejudiced. The Court agrees. Both defendants 15 had been dismissed from this action and bringing these defendants back into the case after nearly 16 two years since the dismissal, would be prejudicial to them. This appreciable delay is seven years 17 after the incident. Plaintiff knew who these individuals were at the time he originally filed his 18 complaint, yet accepted dismissal of them and failed thereafter to amend to link Erickson and 19 Ramirez to his claims. Plaintiff’s motion is, in substance, a reconsideration of the dismissal order 20 dismissing these defendants. The Court has the right to “reconsider, rescind, or modify an 21 interlocutory order for cause seen by it to be sufficient.” City of Los Angeles, Harbor Div. v. 22 Santa Monica Baykeeper, 254 F.3d 882, 889 (9th Cir. 2001). Reconsideration will not be granted 23 “unless the district court is presented with newly discovered evidence, committed clear error, or if 24 there is an intervening change in the controlling law.” Kona Enterprises, Inc. v. Estate of Bishop, 25 229 F.3d 877, 890 (9th Cir. 2000). Plaintiff had been given the opportunity to amend (Doc. 8), 26 expressed his willingness to proceed without Ramirez and Erickson (Doc. 11), knew how to ask 27 for continuances if he needed more time (Doc. 21, 27), and knew how to add parties. It also 28 1 appears that the information to link Erickson and Ramirez was in Plaintiff’s possession from the 2 outset of this litigation and he could have asked at any time to amend to add these defendants. In 3 his request to amend, Plaintiff merely argues COVID and prison transfers delayed his request to 4 amend. However, this is insufficient excuse as to Erickson and Ramirez. After careful 5 consideration of Plaintiff’s arguments and on balancing Plaintiff’s and the Defendants’ rights and 6 obligations, the Court concludes that the § 1983 claims against Defendants Ramirez and Erickson 7 should remain dismissed. Schmitz v. A. Asman, No. 2:20-CV-00195 JAM CKD (PS), at *7 (E.D. 8 Cal. Aug. 3, 2021). 9 C. Bad Faith 10 Defendants argue that the delay in seeking leave to amend is in bad faith. Defendants note 11 that his complaint was screened and he declined to amend. Leave to amend may be denied where 12 the amendment is sought in bad faith or with dilatory motive. Foman, 371 U.S. at 182. Courts 13 have found bad faith where the amendment was sought solely to cause delay, or defeat the Court’s jurisdiction by adding parties. See, e.g., Cowen v. Bank United of Texas, FSB, 70 F.3d 14 937, 944 (7th Cir.) (denying motion for leave to amend where moving party filed motion in order 15 to delay dismissal). Another factor occasionally considered in such cases is whether the moving 16 party has previously amended his or her pleading. A district court's discretion is “‘particularly 17 broad’ where the plaintiff has previously amended.” Salameh v. Tarsadia Hotel, 726 F3d 1124, 18 1133 (9th Cir. 2013) (plaintiff had “ample opportunity to properly plead a case”). 19 While Plaintiff had ample opportunity to amend the complaint, the Court does not find 20 that the motion is brought in bad faith or for a dilatory motive. It does not appear that the 21 amendment is sought interposed solely for delay, or to defeat the court's jurisdiction. This factor 22 weighs in favor of leave to amend. 23 IV. Conclusion and Recommendation 24 For the reasons discussed above, IT IS HEREBY RECOMMENDED that: 25 1. Plaintiffs’ motion to amend (ECF No. 42) be GRANTED IN PART and DENIED IN 26 PART; 27 a. The claims against defendants M. Ramirez and D. Erickson under 42 U.S.C. § 28 1 1983 should remain dismissed; 2 b. Leave to amend the complaint to reassert § 1983 claims against M. Ramirez and 3 D. Erickson should be DENIED; 4 c. Leave to amend the complaint should otherwise be GRANTED; 5 2. The Clerk of the Court be Directed to file the lodged first amended complaint (ECF No. 6 43); 7 3. Defendants’ request for screening the first amended complaint be GRANTED, and 8 4. Following the district judge's ruling on these findings and recommendations, the case 9 should be referred again to the undersigned for further proceedings, including screening the first 10 amended complaint. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 13 fourteen (14) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned “Objections to 14 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 15 objections within the specified time may result in the waiver of the “right to challenge the 16 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 17 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18

19 IT IS SO ORDERED. 20

21 Dated: September 1, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22

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