1 2 3 4 5 6 7 10 11 RAUL A. YESCAS, III Case No.: 23-CV-106 TWR (AHG) CDCR #AW-1240, 12 ORDER (1) GRANTING Plaintiff, 13 PLAINTIFF’S MOTION FOR vs. LEAVE TO AMEND COMPLAINT 14 [ECF No. 22]; and (2) DENYING
15 DEFENDANTS’ MOTION TO DAN MCCOURT; PRESTON DISMISS PLAINTIFF’S 16 HOWARD; FRANK JOHNSON, COMPLAINT [ECF No. 11] 17 Defendants. (ECF Nos. 11, 22) 18 19
20 Plaintiff Raul A. Yescas, III, currently incarcerated at Mule Creek State Prison in 21 Ione, California, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights 22 action pursuant to 42 U.S.C. § 1983. (ECF No. 1, “Compl.”) Plaintiff alleges that when 23 he was previously housed at the Richard J. Donovan Correctional Facility (“RJD”), 24 Defendants, who are officials from RJD, violated Plaintiff’s First Amendment rights. (See 25 generally Compl.) 26 Currently before the Court are Defendants’ Motion to Dismiss Plaintiff’s Complaint 27 (ECF No. 11, “Mot. to Dismiss”) and Plaintiff’s Motion for Leave to Amend Complaint 28 (ECF No. 22, “Mot. to Amend”), which Plaintiff filed after filing an Opposition to 1 Defendants’ Motion to Dismiss. (See ECF No. 13.) The Court then stayed the briefing 2 schedule for the Motion to Dismiss in light of Plaintiff’s Motion to Amend, (see ECF No. 3 24), and Defendants filed an Opposition to Plaintiff’s Motion to Amend, (see ECF No. 25, 4 “Defs.’ Opp’n”). 5 Having carefully considered Plaintiff’s Complaint and the Parties’ briefs, the Court 6 GRANTS Plaintiff’s Motion to Amend and DENIES AS MOOT Defendants’ Motion to 7 Dismiss Plaintiff’s Complaint. 9 I. Plaintiff’s Allegations 10 According to the Complaint, Defendant McCourt is a supervisor, and Defendants 11 Howard and Johnson are plumbers employed at RJD. (See Compl. at 2.) On December 20, 12 2021, while housed at RJD, Plaintiff was working with Defendants Howard and Johnson 13 in their capacity as plumbers. (See id. at 2–3.) According to Plaintiff, Howard and Johnson 14 refused to fix the sinks that had been clogged for nearly a week and had sewage coming 15 out of them in two prison cells. (See id. at 3.) Howard and Johnson allegedly refused to 16 fix these sinks because they wanted to work in another yard where they would be paid 17 overtime. (See id.) When Plaintiff informed Howard and Johnson that he would report 18 them to the staff and sergeant, they became angry and left. (See id.) 19 The following day, Howard and Johnson allegedly saw Plaintiff reporting to the 20 prison program office to inform Sergeant Kilough1 of the incident, and subsequently 21 refused to allow Plaintiff to work with them. (See id.) Howard and Johnson then conspired 22 with Defendant McCourt, who allegedly falsified documents to get Plaintiff fired from his 23 position. (See id. at 3–4 (accusing McCourt of falsely claiming that Plaintiff had a “128 24 drop crono”).) Plaintiff responded by filing a grievance for retaliation. (See id. at 4.) 25 McCourt then told an inmate housed in one of the cells with the sink issues that the inmate 26 27 28 1 would not be paid or allowed to work because of Plaintiff and his cellmate’s grievances 2 against McCourt, Howard, and Johnson. (See id. at 4.) This caused the inmate to “kite 3 [Plaintiff] off the yard,” causing Plaintiff to be placed in administrative segregation. (See 4 id.) Defendant McCourt then falsely claimed safety concerns to get Plaintiff and his 5 cellmate transferred to another prison in the hope that transfer would avoid a lawsuit. (See 6 id.) As a result of Defendants’ actions, Plaintiff seeks three forms of injunctive relief: the 7 removal of “128 drop crono” from his record, permission to return to RJD, and an apology 8 from Defendants. (See id. at 7.) Plaintiff also seeks $15,000 in compensatory damages 9 and $15,000 in punitive damages. 10 II. Procedural History 11 Plaintiff filed his initial Complaint and motion to proceed IFP in this case on 12 January 17, 2023. (See ECF Nos. 1, 2.) The Court granted Plaintiff’s motion to proceed 13 IFP and found that Plaintiff’s “First Amendment claims against McCourt, Howard, and 14 Johnson survive[d] the ‘low threshold’ set for sua sponte screening pursuant to 28 U.S.C. 15 §§ 1915(e)(2) and 1915A(b).” (See ECF No. 5 at 6.) Accordingly, the Court directed the 16 U.S. Marshals Service to effect service on Plaintiff’s behalf. (See id. at 7.) 17 On June 9, 2023, Defendants filed a Motion to Dismiss Plaintiff’s Complaint 18 pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot. to Dismiss.) Plaintiff filed 19 an Opposition that did not contain any argument but indicated that he wanted to submit a 20 number of exhibits that would “clear up [Defendants’] confusion.” (See ECF No. 13 at 1.) 21 There were no exhibits, however, attached to Plaintiff’s Opposition. (See id.) Instead, 22 Plaintiff filed a “Motion for Leave to Amend Complaint” to which he attached the exhibits 23 that he references in his Opposition. (See Mot. to Amend.) 25 Pursuant to Federal Rule of Civil Procedure 15(a), a party “may amend its pleading 26 once as a matter of course . . . 21 days after service of a motion under Rule 12(b) . . . .” 27 Fed. R. Civ. P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with 28 / / / 1 the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The 2 court should freely give leave when justice so requires.” Id. When evaluating a motion to 3 amend under Rule 15, the court considers: (1) whether there has been undue delay, bad 4 faith, or dilatory motive on the part of the moving party, (2) whether there have been 5 repeated failures to cure deficiencies by previous amendments, (3) whether there has been 6 undue prejudice to the opposing party “by virtue of allowance of the amendment[,]” and 7 (4) whether amendment would be futile. Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 8 2015) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 9 Defendants oppose Plaintiff’s Motion to Amend on the grounds that he “failed to 10 attach a proposed amended complaint to the Motion” and has not “addressed any of the 11 deficiencies identified by Defendants in their Motion to Dismiss.” (Defs.’ Opp’n at 1–2.)2 12 First, Defendants argue that the Court’s local rule requires a Plaintiff to submit a proposed 13 amended complaint along with the motion seeking leave to amend but that Plaintiff failed 14 to do so. (Id. at 4.) Local Rule 15.1(b) does, as Defendants set forth, require that “[a]ny 15 motion to amend a pleading . . . be accompanied by: (1) a copy of the proposed amended 16 pleading, and (2) a version of the proposed amended pleading that shows – through 17 redlining, underling and strikeouts, or other similarly effective typographic methods – how 18 the proposed amended pleading differs from the operative pleading.” S.D. Cal. Civ.L.R. 19 15.1.b.
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1 2 3 4 5 6 7 10 11 RAUL A. YESCAS, III Case No.: 23-CV-106 TWR (AHG) CDCR #AW-1240, 12 ORDER (1) GRANTING Plaintiff, 13 PLAINTIFF’S MOTION FOR vs. LEAVE TO AMEND COMPLAINT 14 [ECF No. 22]; and (2) DENYING
15 DEFENDANTS’ MOTION TO DAN MCCOURT; PRESTON DISMISS PLAINTIFF’S 16 HOWARD; FRANK JOHNSON, COMPLAINT [ECF No. 11] 17 Defendants. (ECF Nos. 11, 22) 18 19
20 Plaintiff Raul A. Yescas, III, currently incarcerated at Mule Creek State Prison in 21 Ione, California, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights 22 action pursuant to 42 U.S.C. § 1983. (ECF No. 1, “Compl.”) Plaintiff alleges that when 23 he was previously housed at the Richard J. Donovan Correctional Facility (“RJD”), 24 Defendants, who are officials from RJD, violated Plaintiff’s First Amendment rights. (See 25 generally Compl.) 26 Currently before the Court are Defendants’ Motion to Dismiss Plaintiff’s Complaint 27 (ECF No. 11, “Mot. to Dismiss”) and Plaintiff’s Motion for Leave to Amend Complaint 28 (ECF No. 22, “Mot. to Amend”), which Plaintiff filed after filing an Opposition to 1 Defendants’ Motion to Dismiss. (See ECF No. 13.) The Court then stayed the briefing 2 schedule for the Motion to Dismiss in light of Plaintiff’s Motion to Amend, (see ECF No. 3 24), and Defendants filed an Opposition to Plaintiff’s Motion to Amend, (see ECF No. 25, 4 “Defs.’ Opp’n”). 5 Having carefully considered Plaintiff’s Complaint and the Parties’ briefs, the Court 6 GRANTS Plaintiff’s Motion to Amend and DENIES AS MOOT Defendants’ Motion to 7 Dismiss Plaintiff’s Complaint. 9 I. Plaintiff’s Allegations 10 According to the Complaint, Defendant McCourt is a supervisor, and Defendants 11 Howard and Johnson are plumbers employed at RJD. (See Compl. at 2.) On December 20, 12 2021, while housed at RJD, Plaintiff was working with Defendants Howard and Johnson 13 in their capacity as plumbers. (See id. at 2–3.) According to Plaintiff, Howard and Johnson 14 refused to fix the sinks that had been clogged for nearly a week and had sewage coming 15 out of them in two prison cells. (See id. at 3.) Howard and Johnson allegedly refused to 16 fix these sinks because they wanted to work in another yard where they would be paid 17 overtime. (See id.) When Plaintiff informed Howard and Johnson that he would report 18 them to the staff and sergeant, they became angry and left. (See id.) 19 The following day, Howard and Johnson allegedly saw Plaintiff reporting to the 20 prison program office to inform Sergeant Kilough1 of the incident, and subsequently 21 refused to allow Plaintiff to work with them. (See id.) Howard and Johnson then conspired 22 with Defendant McCourt, who allegedly falsified documents to get Plaintiff fired from his 23 position. (See id. at 3–4 (accusing McCourt of falsely claiming that Plaintiff had a “128 24 drop crono”).) Plaintiff responded by filing a grievance for retaliation. (See id. at 4.) 25 McCourt then told an inmate housed in one of the cells with the sink issues that the inmate 26 27 28 1 would not be paid or allowed to work because of Plaintiff and his cellmate’s grievances 2 against McCourt, Howard, and Johnson. (See id. at 4.) This caused the inmate to “kite 3 [Plaintiff] off the yard,” causing Plaintiff to be placed in administrative segregation. (See 4 id.) Defendant McCourt then falsely claimed safety concerns to get Plaintiff and his 5 cellmate transferred to another prison in the hope that transfer would avoid a lawsuit. (See 6 id.) As a result of Defendants’ actions, Plaintiff seeks three forms of injunctive relief: the 7 removal of “128 drop crono” from his record, permission to return to RJD, and an apology 8 from Defendants. (See id. at 7.) Plaintiff also seeks $15,000 in compensatory damages 9 and $15,000 in punitive damages. 10 II. Procedural History 11 Plaintiff filed his initial Complaint and motion to proceed IFP in this case on 12 January 17, 2023. (See ECF Nos. 1, 2.) The Court granted Plaintiff’s motion to proceed 13 IFP and found that Plaintiff’s “First Amendment claims against McCourt, Howard, and 14 Johnson survive[d] the ‘low threshold’ set for sua sponte screening pursuant to 28 U.S.C. 15 §§ 1915(e)(2) and 1915A(b).” (See ECF No. 5 at 6.) Accordingly, the Court directed the 16 U.S. Marshals Service to effect service on Plaintiff’s behalf. (See id. at 7.) 17 On June 9, 2023, Defendants filed a Motion to Dismiss Plaintiff’s Complaint 18 pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Mot. to Dismiss.) Plaintiff filed 19 an Opposition that did not contain any argument but indicated that he wanted to submit a 20 number of exhibits that would “clear up [Defendants’] confusion.” (See ECF No. 13 at 1.) 21 There were no exhibits, however, attached to Plaintiff’s Opposition. (See id.) Instead, 22 Plaintiff filed a “Motion for Leave to Amend Complaint” to which he attached the exhibits 23 that he references in his Opposition. (See Mot. to Amend.) 25 Pursuant to Federal Rule of Civil Procedure 15(a), a party “may amend its pleading 26 once as a matter of course . . . 21 days after service of a motion under Rule 12(b) . . . .” 27 Fed. R. Civ. P. 15(a)(1)(B). “In all other cases, a party may amend its pleading only with 28 / / / 1 the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The 2 court should freely give leave when justice so requires.” Id. When evaluating a motion to 3 amend under Rule 15, the court considers: (1) whether there has been undue delay, bad 4 faith, or dilatory motive on the part of the moving party, (2) whether there have been 5 repeated failures to cure deficiencies by previous amendments, (3) whether there has been 6 undue prejudice to the opposing party “by virtue of allowance of the amendment[,]” and 7 (4) whether amendment would be futile. Sharkey v. O’Neal, 778 F.3d 767, 774 (9th Cir. 8 2015) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). 9 Defendants oppose Plaintiff’s Motion to Amend on the grounds that he “failed to 10 attach a proposed amended complaint to the Motion” and has not “addressed any of the 11 deficiencies identified by Defendants in their Motion to Dismiss.” (Defs.’ Opp’n at 1–2.)2 12 First, Defendants argue that the Court’s local rule requires a Plaintiff to submit a proposed 13 amended complaint along with the motion seeking leave to amend but that Plaintiff failed 14 to do so. (Id. at 4.) Local Rule 15.1(b) does, as Defendants set forth, require that “[a]ny 15 motion to amend a pleading . . . be accompanied by: (1) a copy of the proposed amended 16 pleading, and (2) a version of the proposed amended pleading that shows – through 17 redlining, underling and strikeouts, or other similarly effective typographic methods – how 18 the proposed amended pleading differs from the operative pleading.” S.D. Cal. Civ.L.R. 19 15.1.b. Notably, however, Defendants fail to cite to the other section of Local Rule 15.1 20 that provides “[p]arties who are in custody and appearing pro se are exempted from 21 complying with the requirements of Civil Local Rule 15.1.b to provide a version of the 22 23 24 2 Counsel for Defendants has submitted a declaration in which she attests that the Court held a 25 hearing in July in which the “Court discussed Plaintiff’s options in proceeding with this action.” (Defs.’ Opp’n at 3.) According to Counsel, “those options included sending Defendants’ counsel a proposed 26 amended complaint to explore the possibility of having Defendants stipulate to allowing Plaintiff to file the amended complaint.” (Id. (citing ECF No. 25, Declaration of Audra C. Call (“ACC Decl.”) at ¶ 8.)). 27 While that may have been an option, however, that was not the sole option available to Plaintiff, and there is no requirement that he send his proposed amended pleading to Defendants before seeking leave of Court 28 1 proposed amended pleading that shows how that pleading differs from the operating 2 pleading.” S.D. Cal. Civ.L.R. 15.1.d. 3 In light of Plaintiff’s pro se status and incarceration, the Court finds that failing to 4 submit a proposed amended complaint does not constitute “undue delay, bad faith, or 5 dilatory motive.” Sharkey, 778 F.3d at 774. Accordingly, while it would have been 6 preferable for Plaintiff to file a proposed amended complaint, Plaintiff is exempted from 7 that requirement, and the Court does not find that the failure to follow this Local Rule 8 should preclude Plaintiff from seeking leave to file an amended complaint. 9 Defendants also argue that any amendment would be futile because the evidence 10 Plaintiff seeks to add to this action through the exhibits he has attached to his Motion to 11 Amend “does not correct the deficiencies that were noted by Defendants in their Motion to 12 Dismiss.” (Defs.’ Opp’n at 5.) Defendants argue that, “if an amended pleading was filed 13 by Plaintiff based upon the evidence Plaintiff is attempting to introduce in the Motion for 14 Leave to Amend, Defendants would be left to file essentially the same Motion to Dismiss 15 that is already on file for consideration by the Court.” (Id. at 6.) 16 It does appear that at least one of Defendants’ arguments in their Motion to Dismiss 17 may become moot through Plaintiff’s submission of exhibits, however, which suggests that 18 Defendants would not, as they claim, be filing “essentially the same Motion to Dismiss” 19 that is already before the Court. Specifically, in Defendants’ Motion to Dismiss, they argue 20 that Plaintiff’s “[v]erbal complaints about work performance of employees is not 21 constitutionally protected conduct.” (Mot. to Dismiss at 16.) However, in the attachments 22 to Plaintiff’s Motion to Amend, (see generally ECF No. 22-1), Plaintiff includes a written 23 grievance on a CDCR 602-1 form. (See id. at 39–40, Grievance, CDCR Form 602-1, 24 Dec. 21, 2021.) In this grievance, Plaintiff claims Howard and Johnson “chose to disregard 25 their assigned work orders for the day,” and he informed correctional officers of their 26 alleged failure to perform the work. (Id. at 39.) Therefore, it appears that Plaintiff did file 27 a written grievance regarding the alleged actions of the Defendants, which Plaintiff alleges 28 violated his First Amendment rights. At a minimum, it is well settled that filing a written 1 grievance is considered protected conduct for purposes of a First Amendment retaliation 2 claim. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (“Prisoners have a First 3 Amendment right to file grievances against prison officials and to be free from retaliation 4 for doing so.”). Accordingly, the Court cannot say at this time that amendment would be 5 futile. 6 As stated above, Plaintiff is a pro se litigant who has not yet amended his original 7 Complaint, and leave to amend should be freely given. See Lucas v. Dep't of Corr., 66 8 F.3d 245, 248 (9th Cir. 1995) (“[U]nless it is absolutely clear that no amendment can cure 9 the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an 10 opportunity to amend prior to dismissal of the action.”). Moreover, Defendants have not 11 demonstrated that Plaintiff’s Motion to Amend was brought with undue delay, bad faith, 12 or dilatory motive. Accordingly, the Court GRANTS Plaintiff’s Motion to Amend and 13 DENIES AS MOOT Defendants’ Motion to Dismiss. 15 Accordingly, the Court: 16 (1) GRANTS Plaintiff’s Motion to Amend (ECF No. 22); 17 (2) GRANTS Plaintiff sixty (60) days from the date of this Order to file a First 18 Amended Complaint. Plaintiff’s Amended Complaint3 must be complete by itself without 19 reference to any previous version of his pleading; Defendants not named and any claims 20 not re-alleged in the Amended Complaint will be considered waived. See S.D. Cal. 21 Civ.L.R. 15.1; Hal Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting 22 that claims dismissed with leave to amend that are not re-alleged in an amended pleading 23 may be “considered waived if not repled”); Roach Studios, Inc. v. Richard Feiner & Co., 24 25 3 Local Rule 15.1.a. provides, in part, “[a]ll amended pleadings must contain copies of all exhibits 26 referred to in such amended pleadings. Permission may be obtained from the Court, if desired, for the removal of any exhibit or exhibits attached to prior pleadings, in order that the same may be attached to 27 the amended pleading.” S.D. Cal. Civ.L.R. 15.1(a). When Plaintiff files an amended complaint, he may also seek permission from the Court to attach the exhibits submitted in support of his Motion to Amend 28 1 896 F.2d 1542, 1546 (9th Cir. 1989) (explaining that “an amended pleading 2 || supersedes the original’’); 3 (3) DENIES AS MOOT Defendants’ Motion to Dismiss Plaintiff's Complaint 4 || ECF No. 11); and 5 (4) DIRECTS the Clerk of Court to mail Plaintiff a court-approved civil rights 6 |}complaint form for his use in amending. 8 ||Dated: December 14, 2023 —— (2 [59> \@ re 10 Honorable Todd W. Robinson United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7