SAMUEL “SOFIA” J. RAMIREZ, Case No.: 3:20-cv-02280-DMS-AHG Plaintiff, REPORT AND RECOMMENDATION REGARDING v. MOTION TO AMEND COMPLAINT A. MIRANDA, et al., [ECF No. 24] Defendants. This matter comes before the Court on Plaintiff’s Motion for Leave to file an Amended Complaint (“Motion to Amend”) (ECF No. 24), which is before the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons that follow, the undersigned recommends the Court DENY the motion without prejudice and allow Plaintiff leave to submit a renewed Motion to Amend with a complete version of her proposed First Amended Complaint for the Court’s consideration. Plaintiff, proceeding pro se and in forma pauperis (“IFP”), filed her original Complaint in this matter on November 20, 2020, bringing constitutional claims against Defendants pursuant to 42 U.S.C. § 1983 based on events that Plaintiff alleges occurred at the Richard J. Donovan Correctional Facility, where she is an inmate. ECF No. 1. The Court granted Plaintiff’s motion to proceed IFP on February 12, 2021, and ordered the United States Marshals Service to effect service of the complaint on Defendants A. Miranda, P. Plascencia, and R. Nieves, all of whom are employees of the California Department of Corrections and Rehabilitation (“CDCR”). ECF No. 5. Defendants waived service and later filed an Answer on June 10, 2021. ECF No. 12. Plaintiff’s Motion to Amend was accepted on discrepancy and formally filed on October 19, 2021, although she was given a nunc pro tunc filing date of October 8, 2021, because that is when the Court received the motion. ECF No. 24. The Court set a briefing schedule on Plaintiff’s Motion to Amend on October 20, 2021, allowing Defendants to respond by October 27, 2021. ECF No. 25 at 2. Defendants filed a response on October 25, 2021 (ECF No. 27), stating that they oppose Plaintiff’s request for leave to amend “on the grounds that the proposed amended complaint appears to be incomplete, since the proposed motion does not include the first nine paragraphs of the motion.” Id. at 2; see also ECF No. 24 at 6. Defendants state that they do not otherwise oppose Plaintiff’s request to amend her Complaint, but ask that if leave to amend is granted, the Court vacate the Scheduling Order to allow Defendants sufficient time to file a motion challenging the First Amended Complaint (“FAC”). ECF No. 27 at 2- 3. Specifically, Defendants ask that they be granted at least thirty days to file a motion to dismiss, from the date that service is ordered on the newly named Defendants Rutlige and Ryer. Id. at 3. Plaintiff’s reply was due by November 15, 2021, but to date, the Court has not received a reply from Plaintiff. Although Plaintiff states in her motion that she seeks leave to amend her complaint “as a matter of course” pursuant to Rule 15 of the Federal Rules of Civil Procedure, the window of time for amendment as a matter of course has passed. See Fed. R. Civ. P. 15(a)(1)(B) (allowing amendment as a matter of course 21 days after service of a responsive pleading, which in this case was served in June 2021). Therefore, Plaintiff must obtain leave of Court to amend her complaint pursuant to Fed. R. Civ. P. 15(a)(2). Under that provision, the Court “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The policy for granting leave should “be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (citations omitted). In determining whether to grant leave, a court considers “‘the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.’” Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1161 (9th Cir. 2021) (quoting Owens, 244 F.3d at 712). In the absence of these factors, leave should be freely given. Hall v. City of L.A., 697 F.3d 1059, 1072-73 (9th Cir. 2012) (citation omitted). In her Motion to Amend, Plaintiff explains that she wishes to amend the Complaint to name two additional defendants: a correctional sergeant identified as “Rutlige,” and another correctional sergeant identified as “Ryer.” See ECF No. 24 at 4-5. Plaintiff also seeks to (1) remove “vague language” in her original complaint; (2) add additional facts to her complaint to support her claims against Rutlige and Ryer; and (3) add a claim for injunctive relief. ECF No. 24 at 1-2, 13. Before addressing whether the Court should grant leave to amend, the undersigned will discuss the changes in Plaintiff’s proposed FAC in more detail. A. Plaintiff’s Proposed Amendments When compared against the existing Complaint, it appears that ¶¶ 12-22 in the proposed FAC contain the new factual allegations that Plaintiff describes in her Motion to Amend, and chronologically should follow Paragraph 10 or 11 of the original Complaint. To elucidate, Paragraph 10 of the proposed FAC alleges Defendant Nieves used a homophobic slur against Plaintiff and stated, “your kind is not wanted here.” ECF No. 24 at 6. This allegation matches up with Paragraph 9 of the existing Complaint, in which Plaintiff alleges that Defendant Nieves stated, “Your kind is not wanted back here. How do you identify?” ECF No. 1 at 4. Although the statements differ somewhat, it appears that Plaintiff is referring to the same exchange with Defendant Nieves in both paragraphs. This impression is bolstered by the fact that in Paragraph 11 of the existing Complaint, Plaintiff lists five fellow inmates who witnessed the interaction and “attempted to console plaintiff,” which corresponds with Paragraph 11 of the FAC, stating that Defendant Nieves’s statement “was made in front of at least six other witnesses. . . .” The following 11 paragraphs of the proposed FAC (¶¶ 12-22) have no corollary in the existing Complaint. After these 11 paragraphs of new allegations, Paragraph 23 of the FAC then picks back up on the narrative continued in Paragraph 12 of the existing Complaint. Compare ECF No. 1 at 4 ¶ 12 (“Upon which, Defendant Nieves taking notice [of the prisoners who witnessed the interaction], sighed, aggressively shaking his head, barked, ‘Go check in!’ Nieves permitted Plaintiff to pass through onto the second gate to her work site”) with ECF No. 24 at 6 ¶ 23 (“Defendant R. Nieves took notice of all the inmates and sighed and aggressively shook his head, and barked ‘Go ahead and go check in.’ The Defendant R. Nieves then allowed the Plaintiff to pass through [] onto the second security gate to her work site”). The new factual allegations in ¶¶ 12-22 of the FAC inform later additions regarding the nature of Plaintiff’s claims. For instance, Plaintiff seeks to add a paragraph explaining the basis of her claims against proposed Defendants Rutlige and Ryer in ¶ 36, alleging that they “knew or should have known that as correctional sergeants it was [their] job duty to step in and put a stop to the conduct of the Defendants R. Nieves and P. Placencia. . . .” Moreover, although the remaining paragraphs (¶¶ 24-35 and 37-40)2 of the proposed FAC
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SAMUEL “SOFIA” J. RAMIREZ, Case No.: 3:20-cv-02280-DMS-AHG Plaintiff, REPORT AND RECOMMENDATION REGARDING v. MOTION TO AMEND COMPLAINT A. MIRANDA, et al., [ECF No. 24] Defendants. This matter comes before the Court on Plaintiff’s Motion for Leave to file an Amended Complaint (“Motion to Amend”) (ECF No. 24), which is before the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons that follow, the undersigned recommends the Court DENY the motion without prejudice and allow Plaintiff leave to submit a renewed Motion to Amend with a complete version of her proposed First Amended Complaint for the Court’s consideration. Plaintiff, proceeding pro se and in forma pauperis (“IFP”), filed her original Complaint in this matter on November 20, 2020, bringing constitutional claims against Defendants pursuant to 42 U.S.C. § 1983 based on events that Plaintiff alleges occurred at the Richard J. Donovan Correctional Facility, where she is an inmate. ECF No. 1. The Court granted Plaintiff’s motion to proceed IFP on February 12, 2021, and ordered the United States Marshals Service to effect service of the complaint on Defendants A. Miranda, P. Plascencia, and R. Nieves, all of whom are employees of the California Department of Corrections and Rehabilitation (“CDCR”). ECF No. 5. Defendants waived service and later filed an Answer on June 10, 2021. ECF No. 12. Plaintiff’s Motion to Amend was accepted on discrepancy and formally filed on October 19, 2021, although she was given a nunc pro tunc filing date of October 8, 2021, because that is when the Court received the motion. ECF No. 24. The Court set a briefing schedule on Plaintiff’s Motion to Amend on October 20, 2021, allowing Defendants to respond by October 27, 2021. ECF No. 25 at 2. Defendants filed a response on October 25, 2021 (ECF No. 27), stating that they oppose Plaintiff’s request for leave to amend “on the grounds that the proposed amended complaint appears to be incomplete, since the proposed motion does not include the first nine paragraphs of the motion.” Id. at 2; see also ECF No. 24 at 6. Defendants state that they do not otherwise oppose Plaintiff’s request to amend her Complaint, but ask that if leave to amend is granted, the Court vacate the Scheduling Order to allow Defendants sufficient time to file a motion challenging the First Amended Complaint (“FAC”). ECF No. 27 at 2- 3. Specifically, Defendants ask that they be granted at least thirty days to file a motion to dismiss, from the date that service is ordered on the newly named Defendants Rutlige and Ryer. Id. at 3. Plaintiff’s reply was due by November 15, 2021, but to date, the Court has not received a reply from Plaintiff. Although Plaintiff states in her motion that she seeks leave to amend her complaint “as a matter of course” pursuant to Rule 15 of the Federal Rules of Civil Procedure, the window of time for amendment as a matter of course has passed. See Fed. R. Civ. P. 15(a)(1)(B) (allowing amendment as a matter of course 21 days after service of a responsive pleading, which in this case was served in June 2021). Therefore, Plaintiff must obtain leave of Court to amend her complaint pursuant to Fed. R. Civ. P. 15(a)(2). Under that provision, the Court “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). The policy for granting leave should “be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (citations omitted). In determining whether to grant leave, a court considers “‘the presence of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.’” Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1161 (9th Cir. 2021) (quoting Owens, 244 F.3d at 712). In the absence of these factors, leave should be freely given. Hall v. City of L.A., 697 F.3d 1059, 1072-73 (9th Cir. 2012) (citation omitted). In her Motion to Amend, Plaintiff explains that she wishes to amend the Complaint to name two additional defendants: a correctional sergeant identified as “Rutlige,” and another correctional sergeant identified as “Ryer.” See ECF No. 24 at 4-5. Plaintiff also seeks to (1) remove “vague language” in her original complaint; (2) add additional facts to her complaint to support her claims against Rutlige and Ryer; and (3) add a claim for injunctive relief. ECF No. 24 at 1-2, 13. Before addressing whether the Court should grant leave to amend, the undersigned will discuss the changes in Plaintiff’s proposed FAC in more detail. A. Plaintiff’s Proposed Amendments When compared against the existing Complaint, it appears that ¶¶ 12-22 in the proposed FAC contain the new factual allegations that Plaintiff describes in her Motion to Amend, and chronologically should follow Paragraph 10 or 11 of the original Complaint. To elucidate, Paragraph 10 of the proposed FAC alleges Defendant Nieves used a homophobic slur against Plaintiff and stated, “your kind is not wanted here.” ECF No. 24 at 6. This allegation matches up with Paragraph 9 of the existing Complaint, in which Plaintiff alleges that Defendant Nieves stated, “Your kind is not wanted back here. How do you identify?” ECF No. 1 at 4. Although the statements differ somewhat, it appears that Plaintiff is referring to the same exchange with Defendant Nieves in both paragraphs. This impression is bolstered by the fact that in Paragraph 11 of the existing Complaint, Plaintiff lists five fellow inmates who witnessed the interaction and “attempted to console plaintiff,” which corresponds with Paragraph 11 of the FAC, stating that Defendant Nieves’s statement “was made in front of at least six other witnesses. . . .” The following 11 paragraphs of the proposed FAC (¶¶ 12-22) have no corollary in the existing Complaint. After these 11 paragraphs of new allegations, Paragraph 23 of the FAC then picks back up on the narrative continued in Paragraph 12 of the existing Complaint. Compare ECF No. 1 at 4 ¶ 12 (“Upon which, Defendant Nieves taking notice [of the prisoners who witnessed the interaction], sighed, aggressively shaking his head, barked, ‘Go check in!’ Nieves permitted Plaintiff to pass through onto the second gate to her work site”) with ECF No. 24 at 6 ¶ 23 (“Defendant R. Nieves took notice of all the inmates and sighed and aggressively shook his head, and barked ‘Go ahead and go check in.’ The Defendant R. Nieves then allowed the Plaintiff to pass through [] onto the second security gate to her work site”). The new factual allegations in ¶¶ 12-22 of the FAC inform later additions regarding the nature of Plaintiff’s claims. For instance, Plaintiff seeks to add a paragraph explaining the basis of her claims against proposed Defendants Rutlige and Ryer in ¶ 36, alleging that they “knew or should have known that as correctional sergeants it was [their] job duty to step in and put a stop to the conduct of the Defendants R. Nieves and P. Placencia. . . .” Moreover, although the remaining paragraphs (¶¶ 24-35 and 37-40)2 of the proposed FAC
1 Paragraph 10 of the original Complaint states: “I responded, ‘I am a transgender, sir!’ The Plaintiff by this time had tensed up, trembling and teared up.” ECF No. 1 at 4 ¶ 10. In the FAC, Plaintiff does not recount the same response to Defendant Nieves’s alleged comment in the paragraph that follows her description of the comment, instead alleging that she “started to tremble and cry with visible tears running down her face” in the same paragraph where she alleges Defendant Nieves used a homophobic slur against her and told her “your kind is not wanted here.” ECF No. 24 at 6 ¶ 10.
correspond with the remaining paragraphs (¶¶ 23-31) of the existing Complaint, Plaintiff’s proposed FAC more fully fleshes out the grounds of her claims in the added final paragraphs numbered ¶¶ 41-46. As stated in her Motion to Amend, Plaintiff also seeks to add a new claim for injunctive relief. Compare ECF No. 24 at 13 with ECF No. 1 at 20. B. Whether the Court Should Permit the Amendments As outlined above, a thorough review of the FAC against the existing Complaint gives the undersigned the impression that Plaintiff seeks to add eleven new paragraphs of factual allegations (¶¶ 12-22), one new paragraph related to Rutlige and Ryer’s purported liability for Plaintiff’s claims (¶ 36), six new paragraphs that more clearly explain Plaintiff’s causes of action (¶¶ 41-46), and a new claim for injunctive relief. However, the undersigned agrees with Defendants that Plaintiff’s proposed FAC appears to be incomplete. See ECF No. 24 at 6. The FAC contains Paragraphs numbered 10-46, and begins in the middle of a sentence that is lacking a paragraph marker altogether (“identify inmates that are transgender by their clothing, even at a distance.”). Paragraphs 1-9 are apparently missing. Therefore, without the benefit of seeing the first nine paragraphs of the proposed FAC, the undersigned cannot recommend that the Court grant Plaintiff leave to file the FAC in its current state. Even if the Court assumes that Plaintiff merely intends to insert the new proposed Paragraphs 10-46 after Paragraphs 1-9 of the existing Complaint, such a piecemeal approach would create untenable confusion regarding what should be treated as the operative pleading and is contrary to controlling law. See, e.g., Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“It is well-established in our circuit that an amended complaint supersedes the original, the latter being treated thereafter as non- existent.”) (internal quotations and citation omitted); Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“[A]fter amendment the original pleading no longer performs any the proposed FAC. ECF No. 24 at 7. When resubmitting her proposed FAC, Plaintiff function”). Moreover, even if the Court could piece together paragraphs 1-9 of the existing Complaint with paragraphs 10-46 of the proposed FAC, the fact that the proposed FAC begins in the middle of a sentence casts doubt on whether that was Plaintiff’s intent in the first place. Nonetheless, the Court should freely grant leave to amend, and Defendants do not otherwise oppose Plaintiff’s request to amend her Complaint, provided that the Court vacates the existing case schedule if the request is granted. See ECF No. 27 at 2. For these reasons, the undersigned RECOMMENDS that the Court DENY Plaintiff’s Motion to Amend (ECF No. 24) without prejudice, and grant Plaintiff 30 days to file a renewed motion to amend with a complete version of the proposed FAC attached thereto. Plaintiff should be advised that any proposed amended complaint needs to include all factual allegations and causes of action she wishes to bring, because it will become the operative pleading if accepted. In other words, the original Complaint (and all allegations therein) will be “treated [] as non-existent” the moment an amended complaint is accepted for filing. Ramirez, 806 F.3d at 1008; Ferdik, 963 F.2d at 1262. Because, if not for the incompleteness, Defendants do not otherwise oppose granting Plaintiff leave to amend the FAC, the undersigned recommends that Defendants be granted 10 days to review any new proposed FAC submitted by Plaintiff to determine whether they oppose granting the renewed motion. As for whether the Court should vacate the case schedule if the new proposed FAC is accepted for filing, that issue is raised prematurely. If Plaintiff files a new FAC, and if Defendants file a motion to dismiss the FAC, the Court will address any motion to stay the case schedule in light of the pending motion to dismiss at that time. For the reasons set forth above, the Court RECOMMENDS that Plaintiff’s Motion to Amend (ECF No. 24) be DENIED without prejudice, and that Plaintiff be granted 30 days to submit a renewed motion to amend with a complete version of the proposed FAC attached thereto. l Thereafter, the Court. RECOMMENDS that Defendants be granted 10 days to review any renewed motion to amend the complaint and to file either an opposition or a notice of non-opposition with the Court. The court submits this Report and Recommendation to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). No later than December 2, 2021, any party to this action may file written objections with the court and serve a copy on all parties. The document should be captioned “Objections to Report and Recommendation.” Dated: November 18, 2021 _SpbiormH. Xion Honorable Allison H. Goddard United States Magistrate Judge