1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BINH CUONG TRAN, Case No. 1:19-cv-00148-DAD-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 13 v. TO AMEND BE GRANTED IN PART AND DENIED IN PART 14 S. SMITH, et al., (ECF No. 39) 15 Defendants. 16 17 Plaintiff Binh Cuong Tran is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion to amend the complaint, filed January 6, 20 2021. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding against Defendants Munsel and Jericoff for deliberate 24 indifference in violation of the Eighth Amendment. 25 Defendants filed an answer to the complaint on March 19, 2020. 26 After an unsuccessful settlement conference, the Court issued the discovery and 27 scheduling order on July 29, 2020. 28 As previously stated, on January 6, 2021, Plaintiff filed the instant motion to amend the 1 complaint. Defendants filed an opposition on January 26, 2021. Plaintiff did not file a reply and 2 the time to do so has expired. Local Rule 230(l). 3 II. 4 LEGAL STANDARD 5 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s 6 pleading once as a matter of course twenty-one days after serving, or if a response was filed, within 7 twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may 8 amend only by leave of the court or by written consent of the adverse party, and leave shall be 9 freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 10 Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so 11 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) 12 (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the 13 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 14 delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to 15 the futility factor, a plaintiff may not bring unrelated claims against unrelated parties in a single 16 action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); 17 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The burden to demonstrate prejudice falls 18 upon the party opposing the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th 19 Cir. 1987). Absent prejudice, or a strong showing of any of the remaining three factors, a 20 presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, LLC 21 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, undue delay alone is insufficient to 22 justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). 23 III. 24 DISCUSSION 25 Plaintiff seeks to amend the complaint to add claims against two supervisors, Sergeants 26 Garcia and Brown, and to add an equal protection claims. Defendants oppose Plaintiff’s motion 27 and argue Plaintiff’s equal protection claim was dismissed, with prejudice, and cannot be revived, 28 amendment would be futile, and allowing amendment will unduly delay the matter and cause 1 prejudice to them. 2 As an initial matter, the Court’s deadline to amend the pleading did not give Plaintiff the 3 automatic right to amend his complaint. For the reasons explained below, Plaintiff’s motion to 4 amend shall be denied in part and granted in part. 5 A. Previously Dismissed Equal Protection Claim 6 At screening, the Court found that Plaintiff’s allegations that he was treated differently 7 from other inmates failed to state a cognizable claim for relief, and Plaintiff was granted leave to 8 amend. (ECF No. 10 at 6, 8.) Plaintiff elected not to amend the complaint and expressly agreed 9 to proceed only on deliberate indifference claim against Defendants Munsel and Jericoff. (ECF 10 Nos. 11, 12.) On December 6, 2019, the Court dismissed Plaintiff’s equal protection claim, with 11 prejudice, for failure to state a cognizable claim for relief. (ECF No. 15.) Plaintiff’s attempt 12 now, over a year later, in seeking to amend to again raise an equal protection challenge 13 demonstrates bad faith on his part. Because Plaintiff’s equal protection claim was dismissed, 14 with prejudice, he is barred from raising it again in this action or any other federal action. 15 Accordingly, amendment to add an equal protection claim should be denied. 16 B. Amendment to Add Sergeants Brown and Garcia 17 Plaintiff seeks to amend to add an Eighth Amendment claim against Sergeants Brown and 18 Garcia, and claims they “created a policy and custom allowing or encouraging the illegal acts.” 19 (Mot. at 1.) Plaintiff further claims Defendants Brown and Garcia “recklessly disregarded an 20 excessive risk to [his] health and safety by failing to act reasonably in response to [his] medical 21 conditions.” (Id. at 2.) 22 Here, Plaintiff’s motion to amend to add an Eighth Amendment claim against Defendants 23 Brown and Garcia should be granted. Plaintiff filed his motion to amend timely under the 24 scheduling order and he only became aware of Sergeants Brown and Garcia’s involvement by 25 way of discovery response from Defendants. The Court finds any prejudice to be minimal, given 26 that discovery is still open and the dispositive motion deadline has not expired. DCD Programs, 27 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (The [Rule 15(a)] “liberality in granting leave 28 to amend is not dependent on whether the amendment will add causes of action or parties”). 1 Further, the Court does not find that amendment would be futile. In order to show that 2 amendment is futile they would need to show that there is no set of facts that can be proved under 3 the amendment that would constitute a valid claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 4 214 (9th Cir. 1988). While Defendants have identified various deficiencies in the proposed 5 amendment, the Court finds that they have not shown that amendment is futile. 6 It is clear that Defendants Brown and Garcia reviewed and approved the bed move 7 Plaintiff is complaining about, but there are insufficient allegations in the motion to amend to 8 give rise to a plausible claim of deliberate indifference. To state a claim under section 1983, a 9 plaintiff must allege that a defendant, while acting under color of state law, caused a deprivation 10 of the plaintiff's federal rights. 42 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BINH CUONG TRAN, Case No. 1:19-cv-00148-DAD-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 13 v. TO AMEND BE GRANTED IN PART AND DENIED IN PART 14 S. SMITH, et al., (ECF No. 39) 15 Defendants. 16 17 Plaintiff Binh Cuong Tran is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion to amend the complaint, filed January 6, 20 2021. 21 I. 22 RELEVANT BACKGROUND 23 This action is proceeding against Defendants Munsel and Jericoff for deliberate 24 indifference in violation of the Eighth Amendment. 25 Defendants filed an answer to the complaint on March 19, 2020. 26 After an unsuccessful settlement conference, the Court issued the discovery and 27 scheduling order on July 29, 2020. 28 As previously stated, on January 6, 2021, Plaintiff filed the instant motion to amend the 1 complaint. Defendants filed an opposition on January 26, 2021. Plaintiff did not file a reply and 2 the time to do so has expired. Local Rule 230(l). 3 II. 4 LEGAL STANDARD 5 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s 6 pleading once as a matter of course twenty-one days after serving, or if a response was filed, within 7 twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may 8 amend only by leave of the court or by written consent of the adverse party, and leave shall be 9 freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). 10 Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so 11 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) 12 (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the 13 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue 14 delay in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to 15 the futility factor, a plaintiff may not bring unrelated claims against unrelated parties in a single 16 action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); 17 George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The burden to demonstrate prejudice falls 18 upon the party opposing the amendment. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th 19 Cir. 1987). Absent prejudice, or a strong showing of any of the remaining three factors, a 20 presumption exists under Rule 15(a) in favor of granting leave to amend. Eminence Capital, LLC 21 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, undue delay alone is insufficient to 22 justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). 23 III. 24 DISCUSSION 25 Plaintiff seeks to amend the complaint to add claims against two supervisors, Sergeants 26 Garcia and Brown, and to add an equal protection claims. Defendants oppose Plaintiff’s motion 27 and argue Plaintiff’s equal protection claim was dismissed, with prejudice, and cannot be revived, 28 amendment would be futile, and allowing amendment will unduly delay the matter and cause 1 prejudice to them. 2 As an initial matter, the Court’s deadline to amend the pleading did not give Plaintiff the 3 automatic right to amend his complaint. For the reasons explained below, Plaintiff’s motion to 4 amend shall be denied in part and granted in part. 5 A. Previously Dismissed Equal Protection Claim 6 At screening, the Court found that Plaintiff’s allegations that he was treated differently 7 from other inmates failed to state a cognizable claim for relief, and Plaintiff was granted leave to 8 amend. (ECF No. 10 at 6, 8.) Plaintiff elected not to amend the complaint and expressly agreed 9 to proceed only on deliberate indifference claim against Defendants Munsel and Jericoff. (ECF 10 Nos. 11, 12.) On December 6, 2019, the Court dismissed Plaintiff’s equal protection claim, with 11 prejudice, for failure to state a cognizable claim for relief. (ECF No. 15.) Plaintiff’s attempt 12 now, over a year later, in seeking to amend to again raise an equal protection challenge 13 demonstrates bad faith on his part. Because Plaintiff’s equal protection claim was dismissed, 14 with prejudice, he is barred from raising it again in this action or any other federal action. 15 Accordingly, amendment to add an equal protection claim should be denied. 16 B. Amendment to Add Sergeants Brown and Garcia 17 Plaintiff seeks to amend to add an Eighth Amendment claim against Sergeants Brown and 18 Garcia, and claims they “created a policy and custom allowing or encouraging the illegal acts.” 19 (Mot. at 1.) Plaintiff further claims Defendants Brown and Garcia “recklessly disregarded an 20 excessive risk to [his] health and safety by failing to act reasonably in response to [his] medical 21 conditions.” (Id. at 2.) 22 Here, Plaintiff’s motion to amend to add an Eighth Amendment claim against Defendants 23 Brown and Garcia should be granted. Plaintiff filed his motion to amend timely under the 24 scheduling order and he only became aware of Sergeants Brown and Garcia’s involvement by 25 way of discovery response from Defendants. The Court finds any prejudice to be minimal, given 26 that discovery is still open and the dispositive motion deadline has not expired. DCD Programs, 27 Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (The [Rule 15(a)] “liberality in granting leave 28 to amend is not dependent on whether the amendment will add causes of action or parties”). 1 Further, the Court does not find that amendment would be futile. In order to show that 2 amendment is futile they would need to show that there is no set of facts that can be proved under 3 the amendment that would constitute a valid claim. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 4 214 (9th Cir. 1988). While Defendants have identified various deficiencies in the proposed 5 amendment, the Court finds that they have not shown that amendment is futile. 6 It is clear that Defendants Brown and Garcia reviewed and approved the bed move 7 Plaintiff is complaining about, but there are insufficient allegations in the motion to amend to 8 give rise to a plausible claim of deliberate indifference. To state a claim under section 1983, a 9 plaintiff must allege that a defendant, while acting under color of state law, caused a deprivation 10 of the plaintiff's federal rights. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988) 11 (citations omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). There 12 is no vicarious liability in section 1983 lawsuits. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) 13 (citing, inter alia, Monell v. Department of Social Services of the City of New York, 436 U.S. 14 658, 691 (1978) ). Hence, a government official—whether subordinate or supervisor—may be 15 held liable under section 1983 only when his or her own actions have caused a constitutional 16 deprivation. OSU Student Alliance v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (citing Monell). 17 Allegations regarding causation “must be individualized and focus on the duties and 18 responsibilities of each individual defendant whose acts or omissions are alleged to have caused a 19 constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (citations 20 omitted). An individual “causes” a constitutional deprivation when he or she (1) “does an 21 affirmative act, participates in another's affirmative acts, or omits to perform an act which he [or 22 she] is legally required to do that causes the deprivation”; or (2) “set[s] in motion a series of acts 23 by others which the [defendant] knows or reasonably should know would cause others to inflict 24 the constitutional injury.” Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc) 25 (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978) ) (quotation marks omitted). 26 A government official may be held individually liable under section 1983 for acts taken in 27 a supervisory capacity, but only when the supervisor's own misconduct caused an alleged 28 constitutional deprivation. See Iqbal, 556 U.S. at 676, 677 (“Absent vicarious liability, each 1 Government official, his or her title notwithstanding, is only liable for his or her own 2 misconduct.”); OSU Student Alliance, 699 F.3d at 1069 (supervisor liable under section 1983 3 only if “he ... engaged in culpable action or inaction himself”) (citing Iqbal at 676). 4 The Ninth Circuit has held that, at least in cases where the applicable standard is 5 deliberate indifference, Iqbal does not foreclose a plaintiff from stating a claim for supervisory 6 liability based upon the “supervisor's knowledge of and acquiescence in unconstitutional conduct 7 by his or her subordinates.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 8 Here, while Sergeants Brown and Garcia reviewed and approved the bed move of which 9 Plaintiff complains, his allegations are lacking factual content and are conclusory in nature. 10 Plaintiff fails to present plausible, factual allegations that Garcia and Brown were aware of a 11 substantial risk to Plaintiff’s health from the bed move and intentionally disregarded that risk. 12 Further, a bare allegation of a policy, custom or practice of “abuse of authority” are insufficient to 13 state a claim. Iqbal, 556 U.S. at 678. 14 Nonetheless, it does not appear beyond doubt that Plaintiff can may be able to amend to 15 state a viable claim against Defendants Brown and Garcia, and given the liberal policy favoring 16 amendments to pleadings and Plaintiff's pro se status, Plaintiff’s motion to amend should be 17 granted. See Fed. R. Civ. P. 15(a)(2) (stating, “[t]he court should freely give leave [to amend a 18 pleading] when justice so requires.”); Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 19 (9th Cir. 1986) (stating, “the Supreme Court has instructed the lower federal courts to heed 20 carefully the command of Rule 15(a), F[ed]. R. Civ. P”) (internal quotations and citations 21 omitted); U.S. v. Webb, 655 F.2d 977, 979 (9th Cir. 1981) (stating, “[r]ule 15's policy of favoring 22 amendments to pleadings should be applied with extreme liberality.”) (internal quotations and 23 citations omitted). 24 IV. 25 RECOMMENDATIONS 26 Based on the foregoing, it is HEREBY RECOMMENDED that: 27 1. Plaintiff’s motion to amend be denied in part and granted in part as follows: 28 a. Denied as to an Equal Protection Clause violation; and 1 b. Granted as to an Eighth Amendment deliberate indifference claim against 2 Defendants Brown and Garcia. 3 These Findings and Recommendations will be submitted to the United States District 4 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen 5 | (14) days after being served with these Findings and Recommendations, the parties may file 6 | written objections with the Court. The document should be captioned “Objections to Magistrate 7 | Judge’s Findings and Recommendations.” The parties are advised that failure to file objections 8 | within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 9 | F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 b IT IS SO ORDERED. ee 13 | Dated: _February 10, 2021 _ _ PFA ee 4 UNITED STATES MAGISTRATE JUDGE
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