1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GILBERT ANTHONY TORRES, Case No.: 20-cv-00891-AJB-BLM CDCR #AP-3210, 12 ORDER:
13 (1) GRANTING PLAINTIFF’S Plaintiff, 14 MOTION TO AMEND THE
COMPLAINT (Doc. No. 13) and 15 v.
16 (2) DENYING AS MOOT A. JORRIN, et al., PLAINTIFF’S MOTION FOR 17 CLARIFICATION (Doc. No. 20) Defendants. 18 19 20 Before the Court is a motion to amend the complaint and motion for clarification 21 filed by Gilbert Anthony Torres, a pro se litigant presently incarcerated at Richard J. 22 Donovan Correctional Facility. (Doc. Nos. 13, 20.) As background, on July 9, 2020, after 23 conducting a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the 24 Court directed service of Plaintiff’s initial complaint on the defendants. (Doc. No. 7 at 8– 25 10.) On September 10, 2020, Plaintiff filed a motion to amend the complaint. (Doc. No. 26 13.) On October 6, 2020, Plaintiff filed a motion for clarification to ascertain whether he 27 is to serve the defendants with his initial complaint or with his requested amended 28 complaint. (Doc. No. 20.) On October 9, 2020, in a notice of document discrepancy, the 1 Court informed Plaintiff that because his motion to amend is pending, the initial complaint 2 remains the operative complaint for service on the defendants. (Doc. No. 19.) The Court 3 also directed the Clerk of Court to mail Plaintiff another copy of the service documents, so 4 he may serve the defendants. (Doc. No. 22.) There being no outstanding issues in Plaintiff’s 5 motion for clarification for the Court to address, the Court DENIES it as MOOT. (Doc. 6 No. 20.) The following will therefore focus on the pending motion to amend. 7 I. MOTION TO AMEND 8 Whether leave to amend a pleading should be granted is governed by Rule 15, which 9 provides that courts should freely grant leave to amend “when justice so requires.” Fed. R. 10 Civ. P. 15(a)(2). The Ninth Circuit has instructed that this policy is “to be applied with 11 extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 12 2001) (internal citations omitted). Despite the policy of liberality, leave to amend is not 13 automatic if sought outside of the time limits set forth in Rule 15(a)(1). In such instances, 14 courts consider the following factors in determining whether to grant leave to amend: (1) 15 whether the party seeking the amendment has acted in bad faith; (2) whether undue delay 16 will result from amendment; (3) whether the opposing party will be unduly prejudiced; and 17 (4) whether amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); accord 18 Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004). Additionally, courts 19 may also consider whether the party seeking leave to amend has previously amended the 20 pleading at issue. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). These factors, 21 however, are not weighed equally. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 22 1052 (9th Cir. 2013). Instead, the consideration of undue prejudice to the opposing party 23 carries the greatest weight. Id. “Absent prejudice, or a strong showing” of the remaining 24 factors, there exists a “presumption under Rule 15(a) in favor of granting leave to amend.” 25 Id. 26 In its sua sponte screening order, the Court dismissed Plaintiff’s due process claim 27 stemming from the disappearance of certain personal property but found that Plaintiff’s 28 excessive force allegations against the defendants were sufficient to survive the low 1 threshold for sua sponte screening. (Doc. No. 7 at 6–8.) Turning to the motion to amend, 2 Plaintiff seeks to allege additional facts, raise new legal claims, and add new defendants to 3 his suit. (Doc. No. 13 at 1.) As Plaintiff’s action is in the early stages of litigation and no 4 substantive activity has occurred in the matter, the Court finds that the amendment would 5 not cause undue delay or prejudice. See Foman, 371 U.S. at 182. Nearly all of the originally 6 named defendants have been served with the initial complaint, and none of them have filed 7 an answer. (Doc. Nos. 26, 27, 28 29.)1 Moreover, Plaintiff has not previously requested to 8 amend his complaint. See Nunes, 375 F.3d at 808. Given the absence of a strong showing 9 of prejudice in this case, the Court follows the “presumption under Rule 15(a) in favor of 10 granting leave to amend.” Eminence Capital, LLC, 316 F.3d at 1052. The Court, however, 11 emphasizes that this ruling makes no determination as to the sufficiency of Plaintiff’s new 12 claims, and finds that resolution of any such matters is better suited for determination 13 following briefing by the parties. Thus, the Court will grant Plaintiff’s motion to amend. 14 II. CONCLUSION 15 Upon consideration of the factors traditionally weighed in determining whether 16 leave to amend should be granted, the Court finds that leave to amend is appropriate. 17 Accordingly, the Court: 18 1. GRANTS Plaintiff’s motion to amend the complaint (Doc. No. 13); 19 2. DENIES AS MOOT Plaintiff’s motion for clarification (Doc. No. 20); 20 3. DIRECTS the Clerk to docket the proposed amended complaint as the First 21 Amended Complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 22 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 23 original.”); 24 25
26 1 The docket does not reflect service of the initial complaint on one of the originally named defendants, 27 Officer Larocoo. However, given Plaintiff’s representation that he failed to promptly receive the summons for service upon the defendants, the Court finds good cause to extend the time necessary for Plaintiff to 28 1 4. DIRECTS the Clerk to serve a copy of this Order on Ralph Diaz, Secretary, 2 California Department of Corrections and Rehabilitation, P.O. Box 942883, 3 Sacramento, California, 94283-0001; 4 5. DIRECTS Plaintiff to serve, via U.S. mail, a copy of the First Amended Complaint 5 to the previously named defendants who have filed waivers of summons in this case: 6 Officers Jorrin, Larios, Sanchez, and Morales; 7 6. DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended Complaint 8 (Doc. No. 13) upon newly named defendants: California Department of Corrections 9 and Rehabilitation, Officers Tibayan, Santana, Angon, Mitchell, and Nurse Sanchez, 10 as well previously named defendant, Officer Larocoo (as he has not yet been served), 11 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of the 12 defendants. In addition, the Clerk will provide Plaintiff with a certified copy of this 13 Order, a certified copy of his First Amended Complaint, and the summons so that he 14 may serve the defendants. Upon receipt of this “IFP Package,” Plaintiff must 15 complete the Form 285 as completely and accurately as possible, include an address 16 where these defendants may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to 17 the United States Marshal according to the instructions the Clerk provides in the 18 letter accompanying his IFP package; 19 7. ORDERS the U.S.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GILBERT ANTHONY TORRES, Case No.: 20-cv-00891-AJB-BLM CDCR #AP-3210, 12 ORDER:
13 (1) GRANTING PLAINTIFF’S Plaintiff, 14 MOTION TO AMEND THE
COMPLAINT (Doc. No. 13) and 15 v.
16 (2) DENYING AS MOOT A. JORRIN, et al., PLAINTIFF’S MOTION FOR 17 CLARIFICATION (Doc. No. 20) Defendants. 18 19 20 Before the Court is a motion to amend the complaint and motion for clarification 21 filed by Gilbert Anthony Torres, a pro se litigant presently incarcerated at Richard J. 22 Donovan Correctional Facility. (Doc. Nos. 13, 20.) As background, on July 9, 2020, after 23 conducting a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), the 24 Court directed service of Plaintiff’s initial complaint on the defendants. (Doc. No. 7 at 8– 25 10.) On September 10, 2020, Plaintiff filed a motion to amend the complaint. (Doc. No. 26 13.) On October 6, 2020, Plaintiff filed a motion for clarification to ascertain whether he 27 is to serve the defendants with his initial complaint or with his requested amended 28 complaint. (Doc. No. 20.) On October 9, 2020, in a notice of document discrepancy, the 1 Court informed Plaintiff that because his motion to amend is pending, the initial complaint 2 remains the operative complaint for service on the defendants. (Doc. No. 19.) The Court 3 also directed the Clerk of Court to mail Plaintiff another copy of the service documents, so 4 he may serve the defendants. (Doc. No. 22.) There being no outstanding issues in Plaintiff’s 5 motion for clarification for the Court to address, the Court DENIES it as MOOT. (Doc. 6 No. 20.) The following will therefore focus on the pending motion to amend. 7 I. MOTION TO AMEND 8 Whether leave to amend a pleading should be granted is governed by Rule 15, which 9 provides that courts should freely grant leave to amend “when justice so requires.” Fed. R. 10 Civ. P. 15(a)(2). The Ninth Circuit has instructed that this policy is “to be applied with 11 extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 12 2001) (internal citations omitted). Despite the policy of liberality, leave to amend is not 13 automatic if sought outside of the time limits set forth in Rule 15(a)(1). In such instances, 14 courts consider the following factors in determining whether to grant leave to amend: (1) 15 whether the party seeking the amendment has acted in bad faith; (2) whether undue delay 16 will result from amendment; (3) whether the opposing party will be unduly prejudiced; and 17 (4) whether amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); accord 18 Smith v. Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004). Additionally, courts 19 may also consider whether the party seeking leave to amend has previously amended the 20 pleading at issue. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). These factors, 21 however, are not weighed equally. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 22 1052 (9th Cir. 2013). Instead, the consideration of undue prejudice to the opposing party 23 carries the greatest weight. Id. “Absent prejudice, or a strong showing” of the remaining 24 factors, there exists a “presumption under Rule 15(a) in favor of granting leave to amend.” 25 Id. 26 In its sua sponte screening order, the Court dismissed Plaintiff’s due process claim 27 stemming from the disappearance of certain personal property but found that Plaintiff’s 28 excessive force allegations against the defendants were sufficient to survive the low 1 threshold for sua sponte screening. (Doc. No. 7 at 6–8.) Turning to the motion to amend, 2 Plaintiff seeks to allege additional facts, raise new legal claims, and add new defendants to 3 his suit. (Doc. No. 13 at 1.) As Plaintiff’s action is in the early stages of litigation and no 4 substantive activity has occurred in the matter, the Court finds that the amendment would 5 not cause undue delay or prejudice. See Foman, 371 U.S. at 182. Nearly all of the originally 6 named defendants have been served with the initial complaint, and none of them have filed 7 an answer. (Doc. Nos. 26, 27, 28 29.)1 Moreover, Plaintiff has not previously requested to 8 amend his complaint. See Nunes, 375 F.3d at 808. Given the absence of a strong showing 9 of prejudice in this case, the Court follows the “presumption under Rule 15(a) in favor of 10 granting leave to amend.” Eminence Capital, LLC, 316 F.3d at 1052. The Court, however, 11 emphasizes that this ruling makes no determination as to the sufficiency of Plaintiff’s new 12 claims, and finds that resolution of any such matters is better suited for determination 13 following briefing by the parties. Thus, the Court will grant Plaintiff’s motion to amend. 14 II. CONCLUSION 15 Upon consideration of the factors traditionally weighed in determining whether 16 leave to amend should be granted, the Court finds that leave to amend is appropriate. 17 Accordingly, the Court: 18 1. GRANTS Plaintiff’s motion to amend the complaint (Doc. No. 13); 19 2. DENIES AS MOOT Plaintiff’s motion for clarification (Doc. No. 20); 20 3. DIRECTS the Clerk to docket the proposed amended complaint as the First 21 Amended Complaint. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 22 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the 23 original.”); 24 25
26 1 The docket does not reflect service of the initial complaint on one of the originally named defendants, 27 Officer Larocoo. However, given Plaintiff’s representation that he failed to promptly receive the summons for service upon the defendants, the Court finds good cause to extend the time necessary for Plaintiff to 28 1 4. DIRECTS the Clerk to serve a copy of this Order on Ralph Diaz, Secretary, 2 California Department of Corrections and Rehabilitation, P.O. Box 942883, 3 Sacramento, California, 94283-0001; 4 5. DIRECTS Plaintiff to serve, via U.S. mail, a copy of the First Amended Complaint 5 to the previously named defendants who have filed waivers of summons in this case: 6 Officers Jorrin, Larios, Sanchez, and Morales; 7 6. DIRECTS the Clerk to issue a summons as to Plaintiff’s First Amended Complaint 8 (Doc. No. 13) upon newly named defendants: California Department of Corrections 9 and Rehabilitation, Officers Tibayan, Santana, Angon, Mitchell, and Nurse Sanchez, 10 as well previously named defendant, Officer Larocoo (as he has not yet been served), 11 and forward it to Plaintiff along with a blank U.S. Marshal Form 285 for each of the 12 defendants. In addition, the Clerk will provide Plaintiff with a certified copy of this 13 Order, a certified copy of his First Amended Complaint, and the summons so that he 14 may serve the defendants. Upon receipt of this “IFP Package,” Plaintiff must 15 complete the Form 285 as completely and accurately as possible, include an address 16 where these defendants may be served, see S.D. Cal. Civ. L.R. 4.1.c, and return it to 17 the United States Marshal according to the instructions the Clerk provides in the 18 letter accompanying his IFP package; 19 7. ORDERS the U.S. Marshal to serve a copy of the First Amended Complaint and 20 summons upon the defendants as directed by Plaintiff on the USM Form 285 21 provided to him. All costs of that service will be advanced by the United States; 22 8. ORDERS the defendants, once all served, to reply to Plaintiff’s First Amended 23 Complaint within the time provided by the applicable provisions of Federal Rule of 24 Civil Procedure 12(a). To be sure, the previously named defendants who have filed 25 waivers of summons need not file a responsive pleading until the reply period for 26 the newly named defendants lapses. 27 9. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to serve 28 upon the defendants, or, if appearance has been entered by counsel, upon the 1 defendants’ counsel, a copy of every further pleading, motion, or other document 2 submitted for the Court’s consideration pursuant to Federal Rule of Civil Procedure 3 5(b). Plaintiff must include with every original document he seeks to file with the 4 Clerk of the Court, a certificate stating the manner in which a true and correct copy 5 of that document has been served on the defendants or their counsel, and the date of 6 that service. See S.D. Cal. Civ. L.R. 5.2. Any document received by the Court which 7 has not been properly filed with the Clerk, or which fails to include a Certificate of 8 Service upon the defendants, may be disregarded. 9 Dated: January 5, 2021 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28