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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JAMES ANTHONY WILLIAMS, CASE NO. 3:19-cv-05045-DGE-TLF 11 Plaintiff, ORDER ADOPTING THE REPORT 12 v. AND RECOMMENDATION (DKT. NO. 100) AND DENYING 13 STEPHEN SINCLAIR, et al., DEFENDANTS’ OBJECTIONS TO ORDER (DKT. NO. 99) 14 Defendant. 15
16 I. INTRODUCTION 17 This matter comes before the Court on the Report and Recommendation (“R&R”) of the 18 Honorable Theresa L. Fricke, United States Magistrate Judge, (Dkt. No. 100) and Defendants’ 19 Objections. (Dkt. No. 109). For the reasons discussed herein, the R&R is ADOPTED. 20 II. BACKGROUND 21 In this 42 U.S.C. § 1983 action, Plaintiff, who is proceeding pro se and in forma pauperis, 22 challenges the Department of Corrections’ disruptive Hygiene Behavior Response Protocol (the 23 “Protocol”). (Dkt. Nos. 6, 47.) The current operative complaint is the Amended Complaint filed 24 1 on January 15, 2021. (Dkt. No. 47.) On September 9, 2021, Plaintiff filed a motion to file a 2 second amended complaint and a third amended complaint when Plaintiff received additional 3 discovery. (Dkt. No. 87.) On January 25, 2022, Judge Fricke issued the R&R denying 4 Plaintiff’s motion to file the second amended complaint. (Dkt. No. 100.) The R&R did allow 5 Plaintiff to amend the complaint a third time in order to comply with a previous Report and
6 Recommendation from February 28, 2020 (Dkt. No. 27) that was adopted by Judge Settle. (Dkt. 7 No. 30.) 8 In a separate order, Judge Fricke granted a motion to appoint counsel and instructed the 9 Clerk to identify pro bono counsel. (Dkt. No. 99.) 10 Plaintiff now brings these objections to both the R&R and the motion to appoint counsel. 11 III. DISCUSSION 12 A. Standard of Review 13 The district judge must determine de novo any part of the magistrate judge’s disposition 14 to which a party has properly objected. The district judge may accept, reject, or modify the
15 recommended disposition; receive further evidence; or return the matter to the magistrate judge 16 with instructions. Fed. R. Civ. P. 72(b)(3). 17 B. Leave to Amend 18 Defendants object to the R&R alleging that the Court erred in granting Plaintiff leave to 19 file an additional amended complaint. (Dkt. No. 109 at 1.) First, Defendants allege the Court 20 committed plain error by allowing Plaintiff leave to amend without attaching a copy of the 21 proposed amended complaint, in violation of Local Civil Rule 15. (Dkt. No. 109.) Second, 22 Defendants allege the Court erred by failing to consider the appropriate legal standard for 23 amending a complaint. (Id.) 24 1 1. Local Civil Rule 15 2 Local Civil Rule 15 governs the procedure in which parties may amend their pleadings. 3 LCR 15. It requires the parties who seek to amend a pleading to attach a copy of the proposed 4 amended pleading. LCR 15. Contrary to Defendants’ contention, it does not restrict the Court’s 5 ability to allow further amendment without a proposed amended complaint.
6 2. Appropriate Legal Standard 7 Under Federal Rule of Civil Procedure 15(a), after an initial 21 day period for 8 amendment as of right, pleadings may be amended only with the opposing party’s written 9 consent or by leave of the court. Fed. R. Civ. P. 15(a)(2). “Courts are free to grant a 10 party leave to amend whenever ‘justice so requires,’ Fed. R. Civ. P. 15(a)(2), and request for 11 leave should be granted with ‘extreme liberty.’” Moss v. U.S. Secret Service, 572 F.3d 962, 972 12 (9th Cir. 2009) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 13 2001)). In addition, “[d]ismissal without leave to amend is improper unless it is clear, upon de 14 novo review, that the complaint could not be saved by any amendment.” Polich v. Burlington
15 Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991); see also Moss v. U.S. Secret Service, 572 16 F.3d at 972; Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 17 The Court must consider five factors when considering whether to grant a party 18 leave to amend: 1) bad faith, 2) undue delay, 3) prejudice to the opposing party, 4) futility of 19 amendment, and 5) whether the party has previously amended the complaint. Desertrain v. City 20 of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citing Johnson v. Buckley, 356 F.3d 1067, 21 1077 (9th Cir. 2004)). 22 Here, Defendants argue that the Court should not adopt the R&R because amendment 23 would prejudice the Defendants and be futile. (Dkt. No. 109 at 11–12.) However, the R&R 24 1 clearly contemplated the prejudice to Defendants and potential futility of amendment. Indeed, 2 the R&R denied leave to file the Proposed Second Amended Complaint because it contained 3 numerous futile amendments. (Dkt. No. 100 at 6–7.) In addition, the R&R explicitly did not 4 allow Plaintiff to “allege any new claims or incidents.” (Id. at 9.) Amendment was 5 recommended only to identify the “John Doe” defendants to bring personal capacity claims
6 against them, (Dkt. No. 100 at 7) which was part of the February 28, 2020 Report and 7 Recommendation (Dkt. No. 27 at 22–23) adopted in part by Judge Settle. (Dkt. No. 30.) 8 Although, as Plaintiff alleges, the prior Amended Complaint was filed without those allegations 9 by Plaintiff’s former counsel, it apparently was a decision Plaintiff disagreed with. (Dkt. No. 10 100 at 9.) 11 The Court does not disagree with the R&R providing Plaintiff the opportunity to further 12 amend his complaint in accordance with the February 28, 2020 Report and Recommendation. 13 However, having considered Defendants’ position on the matter, the Court determines that 14 granting full leave to file an amended complaint without first reviewing the proposed amended
15 complaint would be inappropriate considering Plaintiff previously was provided the opportunity 16 to identify and name the John Doe defendants. 17 In essence, Plaintiff will need to file a brief, additional motion to amend his complaint 18 along with a complete proposed amended complaint. Assuming the proposed amended 19 complaint complies with the guidelines provided in the February 28, 2020 Report and 20 Recommendation, the motion likely will be granted. If the proposed amended complaint does 21 not comply with the guidelines provided in the February 28, 2020 Report and Recommendation, 22 the proposed amended complaint likely will be rejected and the parties will proceed on the 23 current operative amended complaint. (Dkt. No. 47.) 24 1 C. Appointment of Additional Pro Bono Counsel (Dkt. No. 99) 2 Defendants here object to Judge Fricke’s Order Contingently Granting Plaintiff’s Motion 3 for Counsel. (Dkt. No. 99); Fed. R. Civ. P. 72(a).
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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JAMES ANTHONY WILLIAMS, CASE NO. 3:19-cv-05045-DGE-TLF 11 Plaintiff, ORDER ADOPTING THE REPORT 12 v. AND RECOMMENDATION (DKT. NO. 100) AND DENYING 13 STEPHEN SINCLAIR, et al., DEFENDANTS’ OBJECTIONS TO ORDER (DKT. NO. 99) 14 Defendant. 15
16 I. INTRODUCTION 17 This matter comes before the Court on the Report and Recommendation (“R&R”) of the 18 Honorable Theresa L. Fricke, United States Magistrate Judge, (Dkt. No. 100) and Defendants’ 19 Objections. (Dkt. No. 109). For the reasons discussed herein, the R&R is ADOPTED. 20 II. BACKGROUND 21 In this 42 U.S.C. § 1983 action, Plaintiff, who is proceeding pro se and in forma pauperis, 22 challenges the Department of Corrections’ disruptive Hygiene Behavior Response Protocol (the 23 “Protocol”). (Dkt. Nos. 6, 47.) The current operative complaint is the Amended Complaint filed 24 1 on January 15, 2021. (Dkt. No. 47.) On September 9, 2021, Plaintiff filed a motion to file a 2 second amended complaint and a third amended complaint when Plaintiff received additional 3 discovery. (Dkt. No. 87.) On January 25, 2022, Judge Fricke issued the R&R denying 4 Plaintiff’s motion to file the second amended complaint. (Dkt. No. 100.) The R&R did allow 5 Plaintiff to amend the complaint a third time in order to comply with a previous Report and
6 Recommendation from February 28, 2020 (Dkt. No. 27) that was adopted by Judge Settle. (Dkt. 7 No. 30.) 8 In a separate order, Judge Fricke granted a motion to appoint counsel and instructed the 9 Clerk to identify pro bono counsel. (Dkt. No. 99.) 10 Plaintiff now brings these objections to both the R&R and the motion to appoint counsel. 11 III. DISCUSSION 12 A. Standard of Review 13 The district judge must determine de novo any part of the magistrate judge’s disposition 14 to which a party has properly objected. The district judge may accept, reject, or modify the
15 recommended disposition; receive further evidence; or return the matter to the magistrate judge 16 with instructions. Fed. R. Civ. P. 72(b)(3). 17 B. Leave to Amend 18 Defendants object to the R&R alleging that the Court erred in granting Plaintiff leave to 19 file an additional amended complaint. (Dkt. No. 109 at 1.) First, Defendants allege the Court 20 committed plain error by allowing Plaintiff leave to amend without attaching a copy of the 21 proposed amended complaint, in violation of Local Civil Rule 15. (Dkt. No. 109.) Second, 22 Defendants allege the Court erred by failing to consider the appropriate legal standard for 23 amending a complaint. (Id.) 24 1 1. Local Civil Rule 15 2 Local Civil Rule 15 governs the procedure in which parties may amend their pleadings. 3 LCR 15. It requires the parties who seek to amend a pleading to attach a copy of the proposed 4 amended pleading. LCR 15. Contrary to Defendants’ contention, it does not restrict the Court’s 5 ability to allow further amendment without a proposed amended complaint.
6 2. Appropriate Legal Standard 7 Under Federal Rule of Civil Procedure 15(a), after an initial 21 day period for 8 amendment as of right, pleadings may be amended only with the opposing party’s written 9 consent or by leave of the court. Fed. R. Civ. P. 15(a)(2). “Courts are free to grant a 10 party leave to amend whenever ‘justice so requires,’ Fed. R. Civ. P. 15(a)(2), and request for 11 leave should be granted with ‘extreme liberty.’” Moss v. U.S. Secret Service, 572 F.3d 962, 972 12 (9th Cir. 2009) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 13 2001)). In addition, “[d]ismissal without leave to amend is improper unless it is clear, upon de 14 novo review, that the complaint could not be saved by any amendment.” Polich v. Burlington
15 Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991); see also Moss v. U.S. Secret Service, 572 16 F.3d at 972; Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002). 17 The Court must consider five factors when considering whether to grant a party 18 leave to amend: 1) bad faith, 2) undue delay, 3) prejudice to the opposing party, 4) futility of 19 amendment, and 5) whether the party has previously amended the complaint. Desertrain v. City 20 of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citing Johnson v. Buckley, 356 F.3d 1067, 21 1077 (9th Cir. 2004)). 22 Here, Defendants argue that the Court should not adopt the R&R because amendment 23 would prejudice the Defendants and be futile. (Dkt. No. 109 at 11–12.) However, the R&R 24 1 clearly contemplated the prejudice to Defendants and potential futility of amendment. Indeed, 2 the R&R denied leave to file the Proposed Second Amended Complaint because it contained 3 numerous futile amendments. (Dkt. No. 100 at 6–7.) In addition, the R&R explicitly did not 4 allow Plaintiff to “allege any new claims or incidents.” (Id. at 9.) Amendment was 5 recommended only to identify the “John Doe” defendants to bring personal capacity claims
6 against them, (Dkt. No. 100 at 7) which was part of the February 28, 2020 Report and 7 Recommendation (Dkt. No. 27 at 22–23) adopted in part by Judge Settle. (Dkt. No. 30.) 8 Although, as Plaintiff alleges, the prior Amended Complaint was filed without those allegations 9 by Plaintiff’s former counsel, it apparently was a decision Plaintiff disagreed with. (Dkt. No. 10 100 at 9.) 11 The Court does not disagree with the R&R providing Plaintiff the opportunity to further 12 amend his complaint in accordance with the February 28, 2020 Report and Recommendation. 13 However, having considered Defendants’ position on the matter, the Court determines that 14 granting full leave to file an amended complaint without first reviewing the proposed amended
15 complaint would be inappropriate considering Plaintiff previously was provided the opportunity 16 to identify and name the John Doe defendants. 17 In essence, Plaintiff will need to file a brief, additional motion to amend his complaint 18 along with a complete proposed amended complaint. Assuming the proposed amended 19 complaint complies with the guidelines provided in the February 28, 2020 Report and 20 Recommendation, the motion likely will be granted. If the proposed amended complaint does 21 not comply with the guidelines provided in the February 28, 2020 Report and Recommendation, 22 the proposed amended complaint likely will be rejected and the parties will proceed on the 23 current operative amended complaint. (Dkt. No. 47.) 24 1 C. Appointment of Additional Pro Bono Counsel (Dkt. No. 99) 2 Defendants here object to Judge Fricke’s Order Contingently Granting Plaintiff’s Motion 3 for Counsel. (Dkt. No. 99); Fed. R. Civ. P. 72(a). However, the Court has been informed that 4 the Clerk’s efforts to locate volunteer pro bono counsel have been unsuccessful, and the Court is 5 therefore unable to appoint counsel. Accordingly, unless Plaintiff is able to locate counsel
6 himself, he shall proceed in this matter pro se. Furthermore, it is entirely unclear that Defendants 7 have standing to object to such an order. Nonetheless, as the search for pro bono counsel was 8 unsuccessful, Defendants’ motion is moot as to Defendants’ objection to Judge Fricke’s Order 9 Contingently Granting Plaintiff’s Motion for Counsel. (Dkt. No. 99.) 10 IV. CONCLUSION 11 Accordingly, and having considered the January 25, 2022 Report and Recommendation, 12 Defendants’ Objections, and the remainder of the record, the Court finds and ORDERS that said 13 Report and Recommendation (Dkt. No. 100) is ADOPTED as follows: 14 1. Plaintiff is instructed to file a motion for leave to amend and attach to said motion a
15 complete proposed second amended complaint by May 2, 2022. The proposed 16 amended complaint should comply with the guidelines provided in the February 28, 17 2020 Report and Recommendation (Dkt. No. 27) or risk denial of the request to 18 amend the complaint. 19 2. The objection as to the R&R’s recommendation to appoint counsel is moot. 20 Dated this 16th day of March 2022. 21 A 22 David G. Estudillo 23 United States District Judge