1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, Case No. 1:21-cv-01193-ADA-HBK (PC) 12 Plaintiff, FINDING AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR LEAVE 13 v. TO FILE SECOND AMENDED COMPLAINT 14 Z. JONES, et al., FOURTEEN DAY OBJECTION PERIOD
15 Defendants. (Doc. No. 134) 16 17 18 Pending before the Court is Plaintiff’s motion seeking leave to amend his First Amended 19 Complaint filed on September 8, 2022. (Doc. No. 134). Plaintiff accompanies his motion with a 20 proposed [second] amended complaint. (Doc. No. 135). Defendants oppose the motion. (Doc. 21 No. 137). For the reasons stated below, the undersigned recommends that Plaintiff’s motion for 22 leave to file a second amended complaint be denied. 23 BACKGROUND AND PROCEDURAL HISTORY 24 A. Background 25 Plaintiff, a state prisoner proceeding pro se, initiated this action by filing a civil rights 26 complaint under 42 U.S.C. § 1983 on August 6, 2021. (Doc. No. 1). Prior to screening, Plaintiff 27 filed a First Amended Complaint (“FAC”) on September 27, 2021. (Doc. No. 7). The 28 1 undersigned screened Plaintiff’s FAC and found that it stated a cognizable claim for excessive 2 use of force in violation of Plaintiff’s Eighth Amendment right to be free from cruel and unusual 3 punishment against Defendants Z. Jones and J. Rivera. (Doc. No. 15). After Defendants 4 answered, the Court issued its discovery and scheduling order which set a January 25, 2022 5 deadline to amend the pleadings. (Doc. No. 120). 6 B. Plaintiff’s motion and Defendants’ opposition 7 Plaintiff seeks to amend his FAC to add a second claim against Defendants for violating 8 the Americans with Disability Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the 9 Rehabilitation Act of 1973. (Doc. No. 135 at 4). Plaintiff also wishes to amend the relief he is 10 seeking to include an additional $5,000.00 for emotional and mental damages in addition to his 11 previous requests for compensatory and punitive damages. (Id. at 6). 12 Defendants oppose Plaintiff’s motion in their omnibus response. (Doc. No. 137 at 6-8). 13 Defendants first propose that the Court construe Plaintiff’s motion to amend the FAC as a motion 14 for voluntary dismissal under Fed. R. Civ. P. 41(a)(2). (Id. at 4-5). In the alternative, Defendants 15 argue Plaintiff’s attempt to add a claim under the ADA and Rehabilitation Act is futile because 16 the proposed second amended complaint fails to state a plausible claim under either Act. (Id. at 17 6-7). Defendants also argue Plaintiff has unduly delayed amending his complaint because he has 18 been litigating his case for over a year and has been aware of the facts to support his alleged 19 claims under the ADA and Rehabilitation Act since June 2021. (Id. at 7-8). Defendants 20 additionally claim that Plaintiff brought his motion to amend in bad faith. (Id.). Noting, the 21 Prison Litigation Reform Act (“PLRA”) requires Plaintiff to exhaust his administrative remedies, 22 Defendants argue that Plaintiff’s attempt to file a second amended complaint is merely an end- 23 run to avoid the exhaustion requirement. (Id.). Finally, with respect of Plaintiff’s attempt to 24 amend the relief sought, Defendants explain that an amendment of the operative pleading is not 25 warranted or necessary because Plaintiff’s recovery of damages is subject to proof at trial and he 26 is not limited to the amount in damages he stated in his complaint. (Id. at 6). 27 APPLICABLE LAW 28 The Court issued a pre-trial discovery and scheduling order and Defendants filed an 1 Answer to the FAC. Thus, both Rules 16 and 15 of the Federal Rules of Civil Procedure apply to 2 analyzing the instant motion. See Johnson v. Mammouth Recreations, Inc., 975 F.2d 604, 609 3 (9th Cir. 1992)(noting once the district court issues a scheduling order, Rule 16 requires the party 4 seeking to amend to show “good cause” for the amendment and once that is found then the party 5 must demonstrate that amendment is proper under Rule 15)(citing Financial Holding Corp. v. 6 Garnac Grain Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989)(same)). 7 Under Rule 16, “good cause” primarily considers the party’s diligence in seeking 8 amendment. Johnson, 975 F.2d at 609. Plaintiff sought leave to amend well before the deadline 9 set forth in the scheduling order expired. Because Plaintiff’s motion was filed within the time 10 permitted under the scheduling order, the Court finds good cause under Rule 16. Thus, the 11 undersigned turns to analyze whether amendment is permitted under Rule 15(a)(2). 12 Under Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s 13 written consent or the court’s leave” and the “court should freely give leave when justice so 14 requires.” Leave to amend should be denied if amendment: (1) would cause prejudice to the 15 opposing party; (2) is sought in bad faith; (3) would create undue delay, or (4) is futile. 16 Chudacoff v. Univ. Med. Ctr. of S. Nevada, 649 F.3d 1143, 1152 (9th Cir. 2011)(citations 17 omitted); see also Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991)(noting a “district court 18 does not err in denying leave to amend where the amendment would be futile.”); Moore v. 19 Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). A “district court does not err in 20 denying leave to amend where the amendment would be futile.” Saul v. United States, 928 F.2d 21 829, 843 (9th Cir. 1991). The burden to demonstrate prejudice falls on the party opposing 22 amendment. DCD Programs, Lt.d v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent 23 prejudice, or a strong showing of any of the remaining three factors, a presumption exists under 24 Rule 15(a) is in favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 25 F.3d 1048, 1052 (9th Cir. 2003). 26 ANALYSIS 27 The undersigned first addresses Defendants’ argument that the Court should construe 28 Plaintiff’s attempt to amend his complaint as a voluntary dismissal under Fed. R. Civ. P. 41(a)(2). 1 (Doc. No. 137 at 4-5). Defendants’ argument appears to largely address Plaintiff’s August 1, 2 2022 motion to amend the complaint, which the undersigned found was mooted by Plaintiff’s 3 later filed September 8, 2022 motion to amend. Nonetheless, out of an abundance of caution, the 4 Court analyzes Defendants’ argument. To support their argument to construe the motion to 5 amend as a Rule 41 dismissal, Defendants point to Plaintiff’s statement that he is “refiling” his 6 case “after dismissal without prejudice for failing to exhaust my administrative remedies before 7 filing the federal lawsuit.” (Id. at 12)(citing to Doc. No. 124 at 3)(emphasis added). 8 Admittedly, courts must liberally construe pro se prisoner complaints. However, “the 9 liberality with which the court must construe plaintiff’s complaint is not an invitation to disregard 10 the rules that bind each litigant who brings a controversy before the federal judiciary.” Driver v. 11 Gibson, 2021 WL 3857973, *6 (E.D. Cal. Aug. 30, 2021).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS K. MILLS, Case No. 1:21-cv-01193-ADA-HBK (PC) 12 Plaintiff, FINDING AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR LEAVE 13 v. TO FILE SECOND AMENDED COMPLAINT 14 Z. JONES, et al., FOURTEEN DAY OBJECTION PERIOD
15 Defendants. (Doc. No. 134) 16 17 18 Pending before the Court is Plaintiff’s motion seeking leave to amend his First Amended 19 Complaint filed on September 8, 2022. (Doc. No. 134). Plaintiff accompanies his motion with a 20 proposed [second] amended complaint. (Doc. No. 135). Defendants oppose the motion. (Doc. 21 No. 137). For the reasons stated below, the undersigned recommends that Plaintiff’s motion for 22 leave to file a second amended complaint be denied. 23 BACKGROUND AND PROCEDURAL HISTORY 24 A. Background 25 Plaintiff, a state prisoner proceeding pro se, initiated this action by filing a civil rights 26 complaint under 42 U.S.C. § 1983 on August 6, 2021. (Doc. No. 1). Prior to screening, Plaintiff 27 filed a First Amended Complaint (“FAC”) on September 27, 2021. (Doc. No. 7). The 28 1 undersigned screened Plaintiff’s FAC and found that it stated a cognizable claim for excessive 2 use of force in violation of Plaintiff’s Eighth Amendment right to be free from cruel and unusual 3 punishment against Defendants Z. Jones and J. Rivera. (Doc. No. 15). After Defendants 4 answered, the Court issued its discovery and scheduling order which set a January 25, 2022 5 deadline to amend the pleadings. (Doc. No. 120). 6 B. Plaintiff’s motion and Defendants’ opposition 7 Plaintiff seeks to amend his FAC to add a second claim against Defendants for violating 8 the Americans with Disability Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the 9 Rehabilitation Act of 1973. (Doc. No. 135 at 4). Plaintiff also wishes to amend the relief he is 10 seeking to include an additional $5,000.00 for emotional and mental damages in addition to his 11 previous requests for compensatory and punitive damages. (Id. at 6). 12 Defendants oppose Plaintiff’s motion in their omnibus response. (Doc. No. 137 at 6-8). 13 Defendants first propose that the Court construe Plaintiff’s motion to amend the FAC as a motion 14 for voluntary dismissal under Fed. R. Civ. P. 41(a)(2). (Id. at 4-5). In the alternative, Defendants 15 argue Plaintiff’s attempt to add a claim under the ADA and Rehabilitation Act is futile because 16 the proposed second amended complaint fails to state a plausible claim under either Act. (Id. at 17 6-7). Defendants also argue Plaintiff has unduly delayed amending his complaint because he has 18 been litigating his case for over a year and has been aware of the facts to support his alleged 19 claims under the ADA and Rehabilitation Act since June 2021. (Id. at 7-8). Defendants 20 additionally claim that Plaintiff brought his motion to amend in bad faith. (Id.). Noting, the 21 Prison Litigation Reform Act (“PLRA”) requires Plaintiff to exhaust his administrative remedies, 22 Defendants argue that Plaintiff’s attempt to file a second amended complaint is merely an end- 23 run to avoid the exhaustion requirement. (Id.). Finally, with respect of Plaintiff’s attempt to 24 amend the relief sought, Defendants explain that an amendment of the operative pleading is not 25 warranted or necessary because Plaintiff’s recovery of damages is subject to proof at trial and he 26 is not limited to the amount in damages he stated in his complaint. (Id. at 6). 27 APPLICABLE LAW 28 The Court issued a pre-trial discovery and scheduling order and Defendants filed an 1 Answer to the FAC. Thus, both Rules 16 and 15 of the Federal Rules of Civil Procedure apply to 2 analyzing the instant motion. See Johnson v. Mammouth Recreations, Inc., 975 F.2d 604, 609 3 (9th Cir. 1992)(noting once the district court issues a scheduling order, Rule 16 requires the party 4 seeking to amend to show “good cause” for the amendment and once that is found then the party 5 must demonstrate that amendment is proper under Rule 15)(citing Financial Holding Corp. v. 6 Garnac Grain Co., 127 F.R.D. 165, 166 (W.D. Mo. 1989)(same)). 7 Under Rule 16, “good cause” primarily considers the party’s diligence in seeking 8 amendment. Johnson, 975 F.2d at 609. Plaintiff sought leave to amend well before the deadline 9 set forth in the scheduling order expired. Because Plaintiff’s motion was filed within the time 10 permitted under the scheduling order, the Court finds good cause under Rule 16. Thus, the 11 undersigned turns to analyze whether amendment is permitted under Rule 15(a)(2). 12 Under Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s 13 written consent or the court’s leave” and the “court should freely give leave when justice so 14 requires.” Leave to amend should be denied if amendment: (1) would cause prejudice to the 15 opposing party; (2) is sought in bad faith; (3) would create undue delay, or (4) is futile. 16 Chudacoff v. Univ. Med. Ctr. of S. Nevada, 649 F.3d 1143, 1152 (9th Cir. 2011)(citations 17 omitted); see also Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991)(noting a “district court 18 does not err in denying leave to amend where the amendment would be futile.”); Moore v. 19 Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). A “district court does not err in 20 denying leave to amend where the amendment would be futile.” Saul v. United States, 928 F.2d 21 829, 843 (9th Cir. 1991). The burden to demonstrate prejudice falls on the party opposing 22 amendment. DCD Programs, Lt.d v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent 23 prejudice, or a strong showing of any of the remaining three factors, a presumption exists under 24 Rule 15(a) is in favor of granting leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 25 F.3d 1048, 1052 (9th Cir. 2003). 26 ANALYSIS 27 The undersigned first addresses Defendants’ argument that the Court should construe 28 Plaintiff’s attempt to amend his complaint as a voluntary dismissal under Fed. R. Civ. P. 41(a)(2). 1 (Doc. No. 137 at 4-5). Defendants’ argument appears to largely address Plaintiff’s August 1, 2 2022 motion to amend the complaint, which the undersigned found was mooted by Plaintiff’s 3 later filed September 8, 2022 motion to amend. Nonetheless, out of an abundance of caution, the 4 Court analyzes Defendants’ argument. To support their argument to construe the motion to 5 amend as a Rule 41 dismissal, Defendants point to Plaintiff’s statement that he is “refiling” his 6 case “after dismissal without prejudice for failing to exhaust my administrative remedies before 7 filing the federal lawsuit.” (Id. at 12)(citing to Doc. No. 124 at 3)(emphasis added). 8 Admittedly, courts must liberally construe pro se prisoner complaints. However, “the 9 liberality with which the court must construe plaintiff’s complaint is not an invitation to disregard 10 the rules that bind each litigant who brings a controversy before the federal judiciary.” Driver v. 11 Gibson, 2021 WL 3857973, *6 (E.D. Cal. Aug. 30, 2021). Plaintiff is permitted to file an 12 amended complaint with either the Defendants’ written consent or leave from the Court. Fed. R. 13 Civ. P. 15(a)(2). Further, the Discovery and Scheduling Order permits the parties to amend the 14 pleadings until January 25, 2023. (Doc. No. 120). Plaintiff’s single, inartful sentence does not 15 merit construing his motion to amend into a motion to voluntarily dismiss under Rule 41(a)(2). 16 See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (“…we are also mindful of Supreme 17 Court precedent that instructs federal courts liberally to construe the ‘inartful pleadings’ of pro se 18 litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982); Hughes v. Rowe, 499 US 5, 9 19 (1980)) (other citations omitted). Such a construction runs contrary to the Federal Rules of Civil 20 Procedure, the Discovery and Scheduling Order, and Plaintiff’s actions which demonstrate, based 21 on his motion’s practice alone, a desire to continue litigating this case. See generally docket. 22 Turning to a review of the proposed second amended complaint, the undersigned finds it 23 fails to state a plausible claim under either the ADA or Rehabilitation Act. To state a claim under 24 Title II of the ADA, Plaintiff must allege that: 25 (1) he “is an individual with a disability;” (2) he “is otherwise qualified to participate in or receive the benefit of some public 26 entity’s services, programs, or activities;” (3) he “was either excluded from participation in or denied the benefits of the public 27 entity’s services, programs, or activities, or was otherwise discriminated against by the public entity;” and (4) “such 28 exclusion, denial of benefits, or discrimination was by reason of 1 [his] disability.” 2 McGary v. City of Portland, 386 F.32 1259, 1265 (9th Cir. 2004) (alteration in original). The 3 elements of a claim under § 504 of the Rehabilitation Act are the same, with the additional 4 requirement that the program at issue receive federal funds. Duvall v. Cnty. of Kitsap, 260 F.3d 5 1124, 1135 (9th Cir. 2001). 6 In his proposed second amended complaint, Plaintiff alleges Defendants violated the ADA 7 and Rehabilitation Act by treating him with cruel and unusual punishment at North Kern State 8 Prison on June 6, 2021, but he otherwise fails to include any facts is support of his claim. (Doc. 9 No. 135 at 4). While Plaintiff states he was a mental health patient, the lodged second amended 10 complaint is otherwise devoid of any facts relating to Plaintiff’s mental health condition or how it 11 qualifies as a disability. Nor does the lodged second amended complaint contain any facts as to 12 how Defendants’ action or inactions impinged Plaintiff’s rights under the ADA or the 13 Rehabilitation Action. More particularly, Plaintiff’s proposed second amended complaint fails to 14 contain any facts as to what benefit Plaintiff was qualified to participate in or receive from 15 Defendants, how he was excluded from participation or denied such a benefit, and how such 16 exclusion or denial of benefit or discrimination was because of his disability, assuming he has a 17 qualified disability. (See generally Doc. No. 135). The facts Plaintiff alleges in support of his 18 Eighth Amendment are not sufficient to state an ADA claim. See Griffin v. Kelso, No. 2:10-cv- 19 2525 MCE AC P, 2018 U.S. Dist. LEXIS 133857, at *16-17 (E.D. Cal. Aug. 7, 2018). As such, 20 it would be futile to permit Plaintiff to file the proposed second amended complaint. 21 In addition to being futile, the undersigned finds Plaintiff unduly delayed amending his 22 FAC to include any purported ADA or Rehabilitation claim. To evaluate whether a plaintiff 23 unduly delayed bringing his claim, the court considers “whether the moving party knew or should 24 have known the facts and theories raised by the amendment in the original pleading.” 25 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006). Plaintiff 26 attaches various exhibits to his lodged second amended complaint, which appear to be Plaintiff’s 27 medical records. To the extent Plaintiff submits these exhibits as “new” evidence to overcome 28 any argument that he unduly delayed in bringing this additional claim, the dates of the medical 1 documents belie any such claim. Notably, the medical documents are dated July 8, 2021 (Doc. 2 No. 135 at 8-14), November 16, 2020 (Doc No. 135 at 15-16), March 30, 2021 (Doc. No. 135 at 3 18-21, 23, 30, 37). Plaintiff’s FAC was filed on September 27, 2021, after the dated medical 4 documents. (See Doc. No. 7; see also Doc. No. 135 at 8-16, 18-21, 23, 30, 37). Thus, the 5 medical documents are not new evidence. Here, Plaintiff either knew or should have known of a 6 possible ADA claim when he filed the FAC. Plaintiff offers no reason why he did not include 7 potential ADA or Rehabilitation claims when he filed his FAC. 8 Defendants additionally argue that Plaintiff’s attempt to further amend his operative 9 complaint is a bad faith attempt to undermine the Prison Litigation Reform Act’s (“PLRA”) 10 requirements to exhaust administrative remedies. (Doc. No. 137 at 8). In light of the recent 11 Ninth Circuit ruling in Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022), the undersigned is not 12 persuaded that the PLRA’s exhaustion provision prohibits a plaintiff from filing an amended 13 complaint under all circumstances. Id. (recognizing that under certain circumstances a prisoner 14 plaintiff may exhaust remedies during the pendency of an action and file an amended complaint 15 curing an exhaustion deficiency). Nonetheless, the Court need not fully address the merits of the 16 exhaustion issue because as it finds the lodged second amended complaint fails to state a 17 plausible ADA and Rehabilitation claim and recommends denial on the basis of futility. Further, 18 Defendants recently filed an exhaustion-based motion for summary judgement, to which Plaintiff 19 has filed a response in opposition. (Doc. Nos. 151, 153). The exhaustion issue is properly 20 addressed in the context of that motion. (Doc. Nos. 21 Finally, Plaintiff’s request to amend the complaint to add $5,000.00 in mental and 22 emotional damages is not sufficient grounds to amend the complaint. The amount of 23 compensatory and punitive damages alleged in a complaint is of a little importance and any 24 change to those amounts does not offer anything of substance to the original allegations. Ioane v. 25 Spjute, 2015 WL 1983893 *5 (E.D. Cal. Apr. 30, 2015). Further, “[a]n amendment to the amount 26 of damages is…unwarranted.” Id. (citation omitted). At trial, Plaintiff is not limited to the 27 amount of damages stated in his FAC because his recovery of damages are subject to proof at that 28 time. Burns v. Cox, 2020 U.S. Dist. LEXIS 90474, *2 (D. Nev. May 21, 2020). As a result, 1 | “amendment is not required simply to change the amount of damages sought when the categories 2 | of damages sought remain the same.” Jd. Furthermore, amending the relief sought does not offer 3 | anything of substance to Plaintiff's operative complaint. 4 Accordingly, it is RECOMMENDED: 5 The district court deny Plaintiff's motion for leave to file his lodged second amended 6 complaint. (Doc. No. 134). 7 NOTICE TO PARTIES 8 These findings and recommendations will be submitted to the United States district judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 | days after being served with these findings and recommendations, a party may file written 11 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 12 | Findings and Recommendations.” Parties are advised that failure to file objections within the 13 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 14 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 Dated: _ November 8, 2022 oe Zh. Sareh Zackte 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE
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