1 2 3 4 5 6 7 10 11 ANTHONY L. PATTON, No. 2: 19-cv-0451 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 F.N.P. LOADHOLT, et al, 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to file a second 19 amended complaint filed June 22, 2020. (ECF No. 52.) On June 30, 2020, defendants Dhillon, 20 Haile, Rading, Loadholt, Moon and Aguilera filed an opposition to plaintiff’s motion to amend. 21 (ECF No. 54.) On July 2, 2020, defendant Kelso joined in the opposition filed June 30, 2020.1 22 (ECF No. 55.) 23 For the reasons stated herein, plaintiff’s motion for leave to file a second amended 24 complaint is denied with leave to file a third amended complaint. 25 //// 26
27 1 On August 13, 2020, the undersigned recommended that defendant Kelso’s motion to dismiss be granted on the grounds that defendant Kelso is entitled to quasi-judicial immunity. (ECF No. 28 66.) 1 Legal Standard 2 Federal Rule of Civil Procedure 15 requires that a plaintiff obtain either consent of the 3 defendant or leave of court to amend its complaint once the defendant has answered, but “leave 4 shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a); see, e.g., Chodos v. W. 5 Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with “extreme 6 liberality”). 7 In determining whether to grant leave to amend, a court is to consider five factors: 8 “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and 9 (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 10 805, 808 (9th Cir. 2004). The factors are not weighed equally. “Futility of amendment can, by 11 itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 12 (9th Cir. 1995). Undue delay, “by itself...is insufficient to justify denying a motion to amend.” 13 Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quotation 14 marks omitted) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)). “[I]t is the 15 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 16 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice, or a 17 strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) in 18 favor of granting leave to amend.” Id. 19 Background 20 This action proceeds on plaintiff’s first amended complaint filed June 7, 2019, as to 21 defendants Loadholt, Brar, Moon, Sanchez, Rading, Dhillon, Aguilera, Haile and Kelso. (ECF 22 No. 9.) 23 Plaintiff alleges that he was diagnosed with hepatitis C in 2006. (Id. at 4.) Plaintiff 24 alleges that he did not receive treatment for hepatitis C until 2018. (Id.) Plaintiff alleges that as a 25 result of the delay in his receipt of treatment for hepatitis C, he suffered kidney disease, cirrhosis, 26 fibrosis, high blood pressure, hypertension, bone deficiency and a shorter life span. (Id.) 27 Plaintiff alleges that defendant Loadholt was his primary care provider (“PCP) in 2006. 28 (Id.) Plaintiff alleges that defendant Brar was his PCP in 2008. (Id. at 5.) Plaintiff alleges that 1 defendant Moon was his PCP in 2009. (Id. at 6.) Plaintiff alleges that defendant Sanchez was his 2 PCP in 2010. (Id. at 7.) Plaintiff alleges that defendant Rading was his PCP in 2010. (Id. at 10.) 3 Plaintiff alleges that defendant Dhillon was his PCP from 2011-2013. (Id.) Plaintiff alleges that 4 defendant Aguilera was his PCP from 2013-2017. (Id. at 11.) Plaintiff alleges that defendant 5 Haile was his PCP in 2015. (Id. at 12.) 6 Plaintiff alleges that defendants Loadholt, Brar, Moon, Sanchez, Rading, Dhillon, 7 Aguilera and Haile told plaintiff that they would not treat plaintiff’s hepatitis C because the 8 medication available at the prison was too costly. (Id. at 4-12.) Plaintiff alleges that defendants 9 Loadholt, Brar, Moon, Sanchez, Rading, Dhillon, Aguilera and Haile told plaintiff that treating 10 his kidney disease, caused by the untreated hepatitis C, would be less costly than treating his 11 hepatitis C. (Id.) 12 Plaintiff alleges that defendant Kelso acted as Medical Receiver of all prisons and 13 prisoners within the State of California and the (HUMC) at Sacramento from 2006-2017 and was 14 aware that plaintiff was part of a group of hepatitis C infected who were untreated for their (Hep 15 C) virus. (Id. at 17.) Plaintiff alleges that defendant Kelso failed to treat, recommend or order 16 treatment or refer plaintiff to an expert. (Id. at 17-18.) 17 The first amended complaint named nine doe defendants. Plaintiff named the Chief 18 Medical Executive at California State Prison-Corcoran (“Corcoran”) from 2006-2010 as “John 19 Doe 1.” (Id. at 7.) Plaintiff named the Chief Physician and Surgeon at Corcoran from 2006-2010 20 as “John Doe 2.” (Id.) Plaintiff named the Chief Medical Officer at Corcoran from 2006-2010 as 21 “John Doe 3.” (Id. at 9.) Plaintiff named the Chief Medical Executive at the California Medical 22 Facility (“CMF”) from 2010-2017 as “John Doe 4.” (Id. at 13.) Plaintiff named the Chief 23 Physician and Surgeon at CMF from 2010-2017 as “John Doe 5.” (Id. at 14.) Plaintiff named the 24 Chief Medical Officer at CMF from 2010-2017 as “John Doe 6.” (Id. at 15.) Plaintiff named the 25 Deputy Director of Health Care Operations as “John Doe 7.” (Id.) Plaintiff named the Statewide 26 Medical Executive from 2006-2007 as “John Doe 8.” (Id. at 16.) Plaintiff named the Deputy 27 Medical Executive (Utilization Management) from 2007-2017 as “John Doe 9.” (Id. at 17.) 28 //// 1 The allegations against John Does 1-6 in the first amended complaint are the same. 2 Plaintiff alleges that the John Doe defendants were the “overseers” of the other named defendants 3 employed at their prisons. (Id. at 7-9, 13-15.). Plaintiff alleges that the John Doe defendants 4 were aware of the prisoners infected with hepatitis C at their respective prisons. (Id. at 7-9, 13- 5 15.) Plaintiff alleges that the John Doe defendants were aware that the other named defendants 6 who they supervised failed to treat plaintiff for hepatitis C and kidney disease. (Id. at 7-9, 13- 7 15.). Plaintiff alleges that the John Doe defendants failed to treat plaintiff for his hepatitis C and 8 failed to recommend treatment or refer plaintiff to an expert. (Id. at 7-9, 13-15.) Plaintiff alleges 9 that the John Doe defendants had the power to order the defendants they supervised to treat 10 plaintiff yet failed to do so. (Id. at 7-9, 13-15.) 11 Proposed Second Amended Complaint 12 The proposed second amended complaint names all the defendants named in the first 13 amended complaint. (ECF No. 53 at 2.) The proposed second amended complaint names the 14 following new defendants: Dr. McGuinnes, Dr. McCabe, Dr. Bick, Dr. Ditomas, Chief Medical 15 Officers Elam and J.
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1 2 3 4 5 6 7 10 11 ANTHONY L. PATTON, No. 2: 19-cv-0451 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 F.N.P. LOADHOLT, et al, 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to file a second 19 amended complaint filed June 22, 2020. (ECF No. 52.) On June 30, 2020, defendants Dhillon, 20 Haile, Rading, Loadholt, Moon and Aguilera filed an opposition to plaintiff’s motion to amend. 21 (ECF No. 54.) On July 2, 2020, defendant Kelso joined in the opposition filed June 30, 2020.1 22 (ECF No. 55.) 23 For the reasons stated herein, plaintiff’s motion for leave to file a second amended 24 complaint is denied with leave to file a third amended complaint. 25 //// 26
27 1 On August 13, 2020, the undersigned recommended that defendant Kelso’s motion to dismiss be granted on the grounds that defendant Kelso is entitled to quasi-judicial immunity. (ECF No. 28 66.) 1 Legal Standard 2 Federal Rule of Civil Procedure 15 requires that a plaintiff obtain either consent of the 3 defendant or leave of court to amend its complaint once the defendant has answered, but “leave 4 shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a); see, e.g., Chodos v. W. 5 Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with “extreme 6 liberality”). 7 In determining whether to grant leave to amend, a court is to consider five factors: 8 “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and 9 (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 10 805, 808 (9th Cir. 2004). The factors are not weighed equally. “Futility of amendment can, by 11 itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 12 (9th Cir. 1995). Undue delay, “by itself...is insufficient to justify denying a motion to amend.” 13 Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quotation 14 marks omitted) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)). “[I]t is the 15 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 16 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice, or a 17 strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) in 18 favor of granting leave to amend.” Id. 19 Background 20 This action proceeds on plaintiff’s first amended complaint filed June 7, 2019, as to 21 defendants Loadholt, Brar, Moon, Sanchez, Rading, Dhillon, Aguilera, Haile and Kelso. (ECF 22 No. 9.) 23 Plaintiff alleges that he was diagnosed with hepatitis C in 2006. (Id. at 4.) Plaintiff 24 alleges that he did not receive treatment for hepatitis C until 2018. (Id.) Plaintiff alleges that as a 25 result of the delay in his receipt of treatment for hepatitis C, he suffered kidney disease, cirrhosis, 26 fibrosis, high blood pressure, hypertension, bone deficiency and a shorter life span. (Id.) 27 Plaintiff alleges that defendant Loadholt was his primary care provider (“PCP) in 2006. 28 (Id.) Plaintiff alleges that defendant Brar was his PCP in 2008. (Id. at 5.) Plaintiff alleges that 1 defendant Moon was his PCP in 2009. (Id. at 6.) Plaintiff alleges that defendant Sanchez was his 2 PCP in 2010. (Id. at 7.) Plaintiff alleges that defendant Rading was his PCP in 2010. (Id. at 10.) 3 Plaintiff alleges that defendant Dhillon was his PCP from 2011-2013. (Id.) Plaintiff alleges that 4 defendant Aguilera was his PCP from 2013-2017. (Id. at 11.) Plaintiff alleges that defendant 5 Haile was his PCP in 2015. (Id. at 12.) 6 Plaintiff alleges that defendants Loadholt, Brar, Moon, Sanchez, Rading, Dhillon, 7 Aguilera and Haile told plaintiff that they would not treat plaintiff’s hepatitis C because the 8 medication available at the prison was too costly. (Id. at 4-12.) Plaintiff alleges that defendants 9 Loadholt, Brar, Moon, Sanchez, Rading, Dhillon, Aguilera and Haile told plaintiff that treating 10 his kidney disease, caused by the untreated hepatitis C, would be less costly than treating his 11 hepatitis C. (Id.) 12 Plaintiff alleges that defendant Kelso acted as Medical Receiver of all prisons and 13 prisoners within the State of California and the (HUMC) at Sacramento from 2006-2017 and was 14 aware that plaintiff was part of a group of hepatitis C infected who were untreated for their (Hep 15 C) virus. (Id. at 17.) Plaintiff alleges that defendant Kelso failed to treat, recommend or order 16 treatment or refer plaintiff to an expert. (Id. at 17-18.) 17 The first amended complaint named nine doe defendants. Plaintiff named the Chief 18 Medical Executive at California State Prison-Corcoran (“Corcoran”) from 2006-2010 as “John 19 Doe 1.” (Id. at 7.) Plaintiff named the Chief Physician and Surgeon at Corcoran from 2006-2010 20 as “John Doe 2.” (Id.) Plaintiff named the Chief Medical Officer at Corcoran from 2006-2010 as 21 “John Doe 3.” (Id. at 9.) Plaintiff named the Chief Medical Executive at the California Medical 22 Facility (“CMF”) from 2010-2017 as “John Doe 4.” (Id. at 13.) Plaintiff named the Chief 23 Physician and Surgeon at CMF from 2010-2017 as “John Doe 5.” (Id. at 14.) Plaintiff named the 24 Chief Medical Officer at CMF from 2010-2017 as “John Doe 6.” (Id. at 15.) Plaintiff named the 25 Deputy Director of Health Care Operations as “John Doe 7.” (Id.) Plaintiff named the Statewide 26 Medical Executive from 2006-2007 as “John Doe 8.” (Id. at 16.) Plaintiff named the Deputy 27 Medical Executive (Utilization Management) from 2007-2017 as “John Doe 9.” (Id. at 17.) 28 //// 1 The allegations against John Does 1-6 in the first amended complaint are the same. 2 Plaintiff alleges that the John Doe defendants were the “overseers” of the other named defendants 3 employed at their prisons. (Id. at 7-9, 13-15.). Plaintiff alleges that the John Doe defendants 4 were aware of the prisoners infected with hepatitis C at their respective prisons. (Id. at 7-9, 13- 5 15.) Plaintiff alleges that the John Doe defendants were aware that the other named defendants 6 who they supervised failed to treat plaintiff for hepatitis C and kidney disease. (Id. at 7-9, 13- 7 15.). Plaintiff alleges that the John Doe defendants failed to treat plaintiff for his hepatitis C and 8 failed to recommend treatment or refer plaintiff to an expert. (Id. at 7-9, 13-15.) Plaintiff alleges 9 that the John Doe defendants had the power to order the defendants they supervised to treat 10 plaintiff yet failed to do so. (Id. at 7-9, 13-15.) 11 Proposed Second Amended Complaint 12 The proposed second amended complaint names all the defendants named in the first 13 amended complaint. (ECF No. 53 at 2.) The proposed second amended complaint names the 14 following new defendants: Dr. McGuinnes, Dr. McCabe, Dr. Bick, Dr. Ditomas, Chief Medical 15 Officers Elam and J. Clark and Nurse Plasencia. (Id.) 16 The allegations against defendants Loadholt, Brar, Moon, Sanchez, Rading, Dhillon and 17 Haile in the proposed second amended complaint are the same as the allegations against these 18 defendants in the first amended complaint. (ECF No. 5-6, 8-12.) Plaintiff’s proposed second 19 amended complaint includes additional allegations against defendant Kelso. (Id. at 13-14.) The 20 undersigned has separately recommended that defendant Kelso’s motion to dismiss be granted on 21 the grounds that defendant Kelso is entitled to quasi-judicial immunity. Accordingly, the 22 undersigned addresses the additional allegations made against defendant Kelso in the proposed 23 second amended complaint in the findings and recommendations addressing defendant Kelso’s 24 motion to dismiss. 25 In the proposed second amended complaint, plaintiff alleges that defendant McCabe was 26 the Chief Physician and Surgeon at California State Prison-Corcoran (“Corcoran”) from 2006- 27 2010. (Id. at 7.) Plaintiff alleges that defendant McGuinness was the Chief Medical Officer 28 (“CMO”) at Corcoran from 2006-2010. (Id.) Plaintiff alleges that defendant Elam was the CMO 1 at the California Medical Facility (“CMF”) from 2010-2017. (Id. at 11.) Plaintiff alleges that 2 defendant J. Clark was the CMO at CMF from 2010-2017. (Id.) Plaintiff alleges that defendant 3 Ditomas was the Chief Surgeon at CMF from 2010-2017. (Id. at 12.) Plaintiff alleges that 4 defendant Bick was the Chief Medical Executive at CMF from 2010-2017. (Id.) 5 Plaintiff alleges that defendants McCabe, McGuinness, Elam, J. Clark, Ditomas and Bick 6 were the “overseers” of all physicians at the prisons where they were employed, including the 7 defendants named in the first amended complaint. (Id. 7-12.) Plaintiff alleges that defendants 8 McCabe, McGuinness, Elam, J. Clark, Ditomas and Bick were aware of all the prisoners infected 9 with hepatitis C at their respective prisons. (Id.) Plaintiff alleges that defendant McCabe, 10 McGuinness, Elam, J. Clark, Ditomas and Bick were aware that the other named defendants 11 failed to treat plaintiff for hepatitis C. (Id.) Plaintiff alleges that defendants McCabe, 12 McGuinness, Elam, J. Clark, Ditomas and Bick implemented, enforced and participated in a 13 policy that caused harm to plaintiff. (Id.) Plaintiff alleges that defendants McCabe, McGuinness, 14 Elam, J. Clark, Ditomas and Bick failed to treat plaintiff or refer plaintiff to an expert. (Id.) 15 Plaintiff alleges that defendants McCabe, McGuinness, Elam, J. Clark, Ditomas and Bick were 16 members of the Utilization Management Committee (“UMC”), formerly the Medical 17 Authorization Review Committee. (Id.) 18 Plaintiff alleges that defendant Plascencia implemented, enforced and participated in a 19 policy which violated plaintiff’s constitutional rights. Id. at 14.) Plaintiff alleges that defendant 20 Plasencia failed to treat or refer plaintiff to an expert who could have informed defendant of an 21 alternative treatment for plaintiff’s hepatitis C. (Id.) 22 Discussion 23 The undersigned observes that defendant McCabe appears to be John Doe 2 named in the 24 first amended complaint. Defendant McGuinness appears to be John Doe 3 named in the first 25 amended complaint. Defendant Bick appears to be John Doe 4 named in the first amended 26 complaint. Defendant Ditomas appears to be John Doe 5 named in the first amended complaint. 27 Defendants Elam and Clark appear to be John Does 6 named in the first amended complaint. 28 Defendant Plasencia is not a John Doe defendant named in the first amended complaint. 1 The gravamen of plaintiff’s claim against defendants McCabe, McGuinness, Bick, 2 Ditomas, Elam, Clark and Plasencia in the second amended complaint is that they implemented, 3 enforced and participated in a policy that caused plaintiff harm. The second amended complaint 4 does not identify this policy. However, liberally construing the second amended complaint, 5 plaintiff appears to allege that these supervisory defendants implemented, enforced and 6 participated in a policy to deny treatment to inmates with hepatitis C due to the cost of the 7 treatment. 8 Prejudice 9 Defendants argue that allowing plaintiff to amend his complaint would prejudice 10 defendants. (ECF No. 54 at 4-5.) Defendants argue that the proposed second amended complaint 11 would add seven defendants who purportedly oversaw policy or denied plaintiff hepatitis C 12 treatment over a course of approximately eleven years. Defendants contend that they have 13 already investigated and produced considerable discovery responsive to plaintiff’s claims against 14 them. Defendants argue that based on plaintiff’s unspecific allegations against the proposed new 15 defendants, they will be required to restart their investigation to determine any alleged 16 involvement by the newly identified officials. Defendants argue that they will be required to 17 modify the current scheduling order to take additional discovery. Defendants contend that this 18 indefinite delay will prejudice defendants. 19 As discussed above, plaintiff’s proposed second amended complaint seeks to identify six 20 doe defendants named in the first amended complaint. Defendants’ opposition does not address 21 this issue. In the motion to amend, plaintiff alleges that he discovered the identity of the doe 22 defendants through discovery. (See ECF No. 52.) For the following reasons, the undersigned 23 finds that plaintiff acted diligently in identifying the Doe defendants. 24 The undersigned observes that on November 13, 2019, this action was referred to the 25 Post-Screening ADR Project. (ECF No. 18.) This action did not settle following the February 11, 26 2020 settlement conference. On March17, 2020, the undersigned issued the discovery and 27 scheduling order. (ECF No. 40.) The discovery deadline was July 10, 2020, and the dispositive 28 motion deadline is October 2, 2020. (Id.) Plaintiff filed his proposed second amended complaint 1 on June 22, 2020. (ECF No. 53.) These circumstances support plaintiff’s claim that he 2 discovered the Doe defendants through discovery and that he acted diligently in identifying the 3 Doe defendants. 4 The Ninth Circuit has found that a district court abused its discretion by denying leave to 5 amend where the deficiencies could be cured by naming the correct defendant. See Crowley v 6 Bannister, 734 F.3d 967, 978 (9th Cir. 2013). Plaintiff’s proposed second amended complaint 7 alleges a different theory of liability against the John Doe defendants than was alleged in the first 8 amended complaint. However, the new theory of liability against the John Doe defendants in the 9 second amended complaint appears to be consistent with the theory of liability against the named 10 defendants in the first amended complaint, i.e, defendants failed to treat his hepatitis C based on a 11 policy to deny treatment because of the cost. 12 For these reasons, the undersigned finds that the prejudice suffered by defendants if 13 plaintiff is permitted to amend his complaint does not outweigh the prejudice suffered by plaintiff 14 if he is not permitted leave to amend in order to identify the John Doe defendants. Crowley, 734 15 F.3d at 978 (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)). 16 Futility of Proposed Amendments 17 Defendants argue that plaintiff’s proposed amendments are futile because plaintiff largely 18 premises his proposed Eighth Amendment claims on oversight and supervision but fails to 19 demonstrate any personal involvement by the newly alleged officials. (Id. at 5.) Defendants 20 argue that without pleading individual involvement or how these supervisory officials would have 21 known of an allegedly deficient policy, plaintiff’s allegations fail to state a claim. Defendants 22 argue that it would be improper to permit plaintiff to amend only for the prospective claims to fail 23 at screening or via a motion to dismiss. 24 In the proposed second amended complaint, plaintiff alleges that defendants McCabe, 25 McGuinness, Elam, J. Clark, Ditomas and Bick and defendant Plasencia implemented, enforced 26 and participated in a policy that caused harm to plaintiff. As discussed above, plaintiff does not 27 identify the specific policy that the supervisory defendants implemented, enforced and 28 participated in that caused him harm. For this reason, the motion to amend is denied. However, 1 plaintiff is granted leave to file a third amended complaint specifically identifying the policy 2 which the newly named defendants allegedly implemented, enforced and participated in which 3 caused him harm. While it appears that plaintiff is alleging that the supervisory defendants 4 implemented a policy of denying treatment to inmates with Hepatitis C due to the cost of the 5 treatment, plaintiff is required to clarify this claim in a third amended complaint. 6 Plaintiff is informed that under section 1983, liability may not be imposed on supervisory 7 personnel for the actions of their employees under a theory of respondeat superior. Ashcroft v. 8 Iqbal, 556 U.S. 662, 677 (2009). “In a § 1983 suit or a Bivens action - where masters do not 9 answer for the torts of their servants - the term ‘supervisory liability’ is a misnomer.” Id. 10 Therefore, when a named defendant holds a supervisory position, the causal link between him and 11 the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 12 858, 862 (9th Cir. 1979). 13 To state a policy claim, a plaintiff must allege facts that show supervisory defendants 14 either: personally participated in the alleged deprivation of constitutional rights; knew of the 15 violations and failed to act to prevent them; or promulgated or “implemented a policy so deficient 16 that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the 17 constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 18 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 19 In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court held that the 20 pleading standard Federal Rule of Civil Procedure 8 announces does not require “detailed factual 21 allegations,” but it demands more than “labels and conclusions and a formulaic recitation of the 22 elements of a cause of action…” Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). 23 “Factual allegations must be enough to raise a right to relief above the speculative level…on the 24 assumption that all the allegations in the complaint are true even if doubtful in fact.” Id. 25 If plaintiff files a proposed amended complaint, he must identify the policy which the 26 newly named defendants implemented, enforced and participated in which allegedly caused him 27 harm. Plaintiff must also plead specific facts in support of this claim. For example, plaintiff 28 must allege how he knows that these defendants implemented a policy to deny treatment to 1 inmates with hepatitis C due to the cost of the treatment. The third amended complaint must 2 allege more than conclusory allegations against the newly named defendants. 3 Bad Faith 4 Defendants argue that plaintiff’s proposed amendments are made in bad faith because they 5 are not potentially colorable. The undersigned does not find that plaintiff’s proposed 6 amendments are made in bad faith. Therefore, this factor does not support a finding that 7 plaintiff’s motion for leave to amend should be denied. 8 Previous Amendments 9 As observed by defendants in the opposition, plaintiff filed the original complaint on 10 March 13, 2019. (ECF No. 1.) On May 8, 2019, the court dismissed the complaint with leave to 11 amend. (ECF No. 6.) On June 7, 2019, plaintiff filed the operative amended complaint. (ECF 12 No. 9.) 13 As discussed above, the proposed second amended complaint identifies the previously 14 named John Doe defendants discovered by plaintiff through discovery. Therefore, plaintiff’s 15 previous amendment of his complaint is not dispositive of the pending motion. 16 Conclusion 17 For the reasons discussed above, plaintiff’s motion to file a second amended complaint is 18 denied. Plaintiff is granted thirty days to file a motion for leave to file a third amended complaint 19 along with a proposed third amended complaint. Plaintiff shall not name defendant Clark Kelso 20 as a defendant in the proposed third amended complaint. Plaintiff shall address the pleading 21 defects discussed above. In other words, if the third amended complaint adds new claims the 22 undersigned will not be inclined to recommend that plaintiff be allowed to proceed on the third 23 amended complaint. 24 Plaintiff is informed that the court cannot refer to a prior pleading in order to make the 25 proposed third amended complaint complete. Local Rule 220 requires that an amended complaint 26 be complete in itself without reference to any prior pleading. 27 //// 28 //// MADE SLD VOMIT LING IN VO POO OP ee OY AV VT tl
1 Accordingly, for the reasons discussed above, IT IS HEREBY ORDERED that □□□□□□□□□□□ 2 | motion to file a second amended complaint (ECF No. 52) is denied; plaintiff is granted thirty days 3 | from the date of this order to file a third amended complaint. 4 | Dated: August 18, 2020 Frese Arn UNITED STATES MAGISTRATE JUDGE 7 8 | Patt451.ame 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10