(PC) Wilson v. Sherman

• Court: District Court, E.D. California
• Decided: April 1, 2025
• Docket: 1:22-cv-00874
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID W. WILSON, Case No.: 1:22-cv-00874-JLT-SKO (PC) 12 Plaintiff, ORDER REGARDING PLAINTIFF’S LODGED THIRD AMENDED 13 v. COMPLAINT 14 STUART SHERMAN, et al., (Doc. 45)

15 Defendants. ORDER DENYING AS MOOT DEFENDANTS’ REQUEST FOR 16 SCREENING OF PLAINTIFF’S LODGED THIRD AMENDED COMPLAINT 17 (Doc. 48) 18 ORDER DIRECTING PLAINTIFF TO FILE 19 ANY MOTION FOR LEAVE TO AMEND AND PROPOSED THIRD AMENDED 20 COMPLAINT WITHIN 21 DAYS

21 22 Plaintiff David W. Wilson is appearing pro se and in forma pauperis in this civil rights 23 action pursuant to 42 U.S.C. section 1983. The matter proceeds on Plaintiff’s Eighth Amendment 24 conditions of confinement claims. 25 I. INTRODUCTION 26 The Court issued its Discovery and Scheduling Order on November 25, 2024. (Doc. 44.) 27 The deadline to amend pleadings was set for March 25, 2025. (Id.) 1 On February 12, 2025, Plaintiff submitted a document titled “Second[1] Amended 2 Complaint for Temporary and Permanent Injunction and Protection and Enforcement and 3 Sanctions Relief for Inadequate Cool Ventaliation [sic] and Black Mold and Water 4 Contamination Imminent Danger.” (Doc. 47.) The document was lodged rather than filed with the 5 Court. (Id.) 6 On February 28, 2025, Defendants filed a request for screening of the lodged third 7 amended complaint. (Doc. 48.) Defendants contend the lodged third amended complaint alleges 8 “violations of deliberate indifference and conditions of confinement,” but also references 9 “previously dismissed claims regarding equal protection violations ….” (Id. at 2.) Defendants 10 assert Plaintiff raises “additional allegations between August 17, 2023, and January 5, 2025, and 11 includes a Fourteenth Amendment due process claim as a part of his second cause of action.” (Id. 12 at 2-3.) 13 The Court addresses Plaintiff’s lodged third amended complaint and Defendants’ request 14 for screening below. 15 II. DISCUSSION 16 A. The Lodged Third Amended Complaint 17 Rule 15(a) of the Federal Rules of Civil Procedure states, in pertinent part: 18 (a) Amendments Before Trial. 19 (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course no later than: 20 (A) 21 days after serving it, or 21 (B) if the pleading is one to which a responsive 22 pleading is required, 21 days after service of a responsive pleading or 21 days after service of a 23 motion under Rule 12(b), (e), or (f), whichever is earlier. 24 (2) Other Amendments. In all other cases, a party may amend 25 its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when 26 justice so requires. 27 1 Plaintiff identifies his pleading as a “Second Amended Complaint,” but his Second Amended Complaint was filed on July 18, 2023. (See Doc. 26.) Therefore, any subsequent amended complaint is properly 1 Fed. R. Civ. P. 15(a)(1) & (2). In evaluating a motion to amend, the Court considers the following 2 factors: (1) undue delay; (2) bad faith; (3) prejudice to the opponent; and (4) futility of 3 amendment. Loehr v. Ventura County Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984). 4 These factors are not of equal weight as prejudice to the opposing party has long been held to be 5 the most critical factor in determining whether to grant leave to amend. See Sonoma Cty. Ass'n of 6 Retired Employees v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (“[T]he consideration of 7 prejudice to the opposing party carries the greatest weight”); Eminence Capital, LLC v. Aspeon, 8 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“As this circuit and others have held, it is the 9 consideration of prejudice to the opposing party that carries the greatest weight”). 10 As noted above, the deadline to amend pleadings was set for March 25, 2025. And while 11 Plaintiff submitted his third amended complaint before the deadline, he has failed to comply with 12 Rule 15 and this Court’s scheduling order.2 13 First, the Discovery and Scheduling Order issued November 25, 2024, advised the parties 14 that the deadline for amending pleadings “does not allow any party to unilaterally file an amended 15 pleading. Rather, any such amended pleadings must comply with all applicable Federal Rules of 16 Civil Procedure (i.e. Rule 15) and Local Rules (i.e. Local Rule 220).” (See Doc. 44 at 3, n.2.) 17 Here, Plaintiff improperly attempted to unilaterally file an amended pleading. 18 Second, Rule 15(a)(1) —allowing for amendment as a matter of course— does not apply 19 here because Defendants filed an answer to Plaintiff’s second amended complaint on September 20 27, 2024, and more than 21 days have elapsed following that filing. Thus, Plaintiff is required to 21 obtain Defendants’ written consent or the court’s leave. See Fed. R. Civ. P. 15(b)(2). There is no 22 indication Plaintiff obtained Defendants’ written consent prior to submission, nor does Plaintiff

23 2 See, e.g., Howard v. Rodriguez, No. 1:24-cv-00285-JLT-SAB (PC), 2024 WL 3970464, at *3 (E.D. Cal. Aug. 28, 2024) (noting “Plaintiff cannot seek to amend the complaint by way of an attachment to his 24 motion for appointment of counsel, without filing a separate motion seeking such relief and meeting the Rule 15 standard”); Bradford v. Ogbuehi, No. 1:17-cv-01128-DAD-SAB (PC), 2020 WL 1970063, at *3 25 (E.D. Cal. Apr. 24, 2020) (noting plaintiff had not been granted leave to file a second amended complaint 26 and did not file a motion for leave to amend; advising plaintiff “is required to familiarize himself with the Federal and Local Rules and comply with both the rules and the orders of the court in litigating this 27 matter”); Houston v. Rio Consumnes Correctional Facility, No. 2:15-cv-2055 WBS KJN P, 2016 WL 7474909, at *1 (E.D. Cal. Dec. 29, 2016) (striking proposed second amended complaint because answer filed by defendants and plaintiff failed to file a motion to amend or a stipulation to amend the complaint 1 have the Court’s leave to file a third amended complaint. When Plaintiff submitted his third 2 amended complaint to the Court, it was lodged rather than filed because no motion seeking the 3 Court’s leave to amend accompanied the third amended complaint. Plaintiff’s submission is 4 therefore procedurally defective because it does not comply with Rule 15(a). 5 In sum, the Court will strike the lodged third amended complaint because Plaintiff’s 6 submission is procedurally deficient in the absence of an accompanying motion for leave to 7 amend. The Court will also deny Defendants’ request for screening of the third amended 8 complaint as moot. Plaintiff will be afforded a single opportunity to file a motion for leave to file 9 a third amended complaint within 21 days of the date of this order.3 That motion must be also 10 accompanied by a proposed third amended complaint. Plaintiff shall consider the following 11 information before submitting the motion and proposed amended complaint. 12 B. Previous Findings and Precautions Concerning Amendment 13 In its First Screening Order addressing Plaintiff’s first amended complaint,4 issued June 14 26, 2023, the undersigned found the complaint failed to state a claim upon which relief could be 15 granted. (Doc. 25.) Plaintiff was granted leave to file a second amended complaint, curing the 16 deficiencies identified in the order, within 21 days. (Id. at 14-15.) 17 Plaintiff filed a second amended complaint on July 18, 2023. (Doc. 26.) On April 10, 18 2024, the undersigned issued Findings and Recommendations to Dismiss Certain Claims (Doc. 19 29) following screening of the second amended complaint. Specifically, the Court found Plaintiff 20 alleged a cognizable Eighth Amendment conditions of confinement claim (Claim One) but failed 21 to allege a cognizable Fourteenth Amendment Equal Protection Clause claim (Claim Two) or 22 cognizable ADA/RA claims (Claim Three) against the named defendants. (Id. at 10-16.) As to 23 Claims Two and Three, the Court determined that granting Plaintiff leave to amend those claims 24 would be futile. (Id. at 14, 16.) Therefore, it was recommended this action proceed only on

25 3 The March 25, 2025, deadline for filing amended pleadings has now passed. Because Plaintiff intended 26 to amend his complaint prior to the deadline, the Court finds permitting Plaintiff one final opportunity to seek amendment is appropriate. 27 4 Plaintiff filed a first amended complaint prior to the Court having an opportunity to screen his original complaint. Because no responsive pleading was due from the opposing parties at that time, Plaintiff was 1 Plaintiff’s Eighth Amendment conditions of confinement claims against the named defendants 2 and that the remaining claims be dismissed with prejudice. (Id. at 16.) Although Plaintiff filed 3 objections, the Findings and Recommendations were adopted in full by District Judge Jennifer L. 4 Thurston on July 23, 2024. (Doc. 31.) Judge Thurston also denied Plaintiff’s motion for 5 reconsideration of her order adopting on October 9, 2024. (Doc. 38.) Therefore, any previously 6 dismissed claims may not be reasserted in an amended complaint. 7 Next, regarding any “additional allegations between August 17, 2023, and January 5, 8 2025,” and any Fourteenth Amendment due process claim, Plaintiff is advised that late-stage 9 amendments may be improper if they alter the nature of the litigation or involve different time 10 periods necessitating additional discovery. See, e.g., Morongo Band of Mission Indians v. Rose, 11 893 F.2d 1074, 1079 (9th Cir. 1990) (affirming the denial of leave to amend where the plaintiffs 12 moved to amend two years after the initial filing and the new claims would have “greatly altered 13 the nature of the litigation and would have required defendants to have undertaken, at a late hour, 14 an entirely new course of defense”); M/V Am. Queen v. San Diego Marine Const. Corp., 708 F.2d 15 1483, 1492 (9th Cir. 1983) (affirming the denial of leave to amend when “[t]he new allegations 16 would totally alter the basis of the action, in that they covered different acts, employees and time 17 periods necessitating additional discovery”). 18 Further, regarding any Fourteenth Amendment due process claim, Plaintiff is advised the 19 Due Process Clause protects prisoners from being deprived of liberty without due process of law. 20 Wolff v. McDonnell, 418 U.S. 539, 556 (1974). To state a cause of action for deprivation of due 21 process, a plaintiff must first establish the existence of a liberty interest for which the protection is 22 sought. “States may under certain circumstances create liberty interests which are protected by 23 the Due Process Clause.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Liberty interests 24 created by state law are generally limited to freedom from restraint which “imposes atypical and 25 significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484. 26 Plaintiff is cautioned that he does not a have protected liberty interest in the processing his 27 appeals, and therefore, could not pursue a claim for denial of due process with respect to the 1 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Similarly, a plaintiff may not impose 2 liability on a defendant simply because he or she played a role in processing or responding to an 3 inmate’s appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (because an 4 administrative appeal process is only a procedural right, no substantive right is conferred, no due 5 process protections arise, and the “failure to process any of Buckley's grievances, without more, 6 is not actionable under section 1983.”). Therefore, Plaintiff should not seek liability against any 7 defendant for his/her involvement in reviewing and denying his inmate appeals. Nor does an 8 inmate have constitutional right to a particular security classification or housing. See Meachum v. 9 Fano, 427 U.S. 215, 224-25 (1976) (no liberty interest protected by the Due Process Clause is 10 implicated in a prison's reclassification and transfer decisions); see also Myron v. Terhune, 476 11 F.3d 716, 718 (9th Cir. 2007). 12 The Court notes the title of Plaintiff’s lodged third amended complaint refers to injunctive 13 relief. This Court previously considered Plaintiff’s motions for injunctive relief filed in July 2022 14 and January 2023. On February 24, 2023, Judge Thurston issued an Order Adopting Conclusion 15 of Findings and Recommendations to Deny Motions for Injunctive Relief. (Doc. 19.) To the 16 extent Plaintiff intends to seek injunctive relief in any third amended complaint, he should review 17 the standards applicable to such requests (see Doc. 15 at 2-6 [Findings and Recommendations to 18 Deny Pending Motions for Injunctive Relief]) to ensure previous deficiencies are corrected. 19 Plaintiff is also reminded that an amended complaint supersedes the original or previous 20 amended complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, any 21 amended complaint must be “complete in itself without reference to the prior or superseded 22 pleading.” See Local Rule 220. 23 Lastly, Plaintiff is advised that any third amended complaint accepted for filing must be 24 screened pursuant to 28 U.S.C. § 1915A(a). Therefore, even assuming Plaintiff files a motion for 25 leave to file a third amended complaint and a proposed third amended complaint, these 26 proceedings will be delayed pending screening. This Court is one of the busiest district courts in 27 the nation and all judges carry heavy caseloads. Delays are inevitable. In this action, again 1 the filing of dispositive motions addressing the merits of the claims5 will be vacated and 2 discovery will effectively be on hold until screening is completed. The Court also notes 3 Defendants have filed a summary judgment motion concerning the exhaustion of administrative 4 remedies. (See Doc. 50.) The exhaustion motion is not yet fully briefed—Plaintiff’s opposition is 5 due April 17, 2025, plus time for mailing, and Defendants may file a reply in accordance with the 6 Local Rules, which may cause further delay of the screening of any third amended complaint. 7 III. CONCLUSION AND ORDER 8 For the foregoing reasons, the Court HEREBY ORDERS: 9 1. The lodged third amended complaint (Doc. 47) is STRICKEN; 10 2. Defendants’ request for screening (Doc. 48) is DENIED as moot; 11 3. Plaintiff MAY file a motion for leave to amend, accompanied by a proposed third 12 amended complaint prepared in accordance with the above, within 21 days of the date 13 of this order. Any third amended complaint will be subject to screening; and 14 4. If Plaintiff decides not to file a third amended complaint and/or if Plaintiff fails to file 15 a motion for leave to amend as set forth above, this litigation will proceed in 16 accordance with the Discovery and Scheduling Order issued on November 25, 2024. 17 IT IS SO ORDERED. 18

19 Dated: April 1, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20

22 23 24 25 26 27

5 Those deadlines are presently set for April 25, 2025, and June 26, 2025, respectively.