(PC) Harris v. Kyle ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DEVONTE B. HARRIS, Case No. 1:19-cv-00462-DAD-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 RECOMMENDING THAT PLAINTIFF’S MOTION TO AMEND THE COMPLAINT BE 13 v. D ENIED 14 K. KYLE, et al., (ECF NO. 49) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 16 THIRTY DAYS 17 18 Plaintiff, Devonte B. Harris, is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Plaintiff’s motion 20 for leave to file an amended complaint adding claims for excessive force claim against three 21 new defendants and a deliberate indifference to risk of suicide claim against a fourth new 22 defendant. (ECF No. 49.) 23 Leave to amend a complaint under Federal Rule of Civil Procedure 15(a) “shall be 24 freely given when justice so requires.” Keniston v. Roberts, 717 F.2d 1295, 1300 (9th Cir. 25 1983). “This policy is to be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, 26 Inc., 316 F.3d 1048, 1051 (9th Cir. 2003); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 27 708, 712 (9th Cir. 2001). 28 However, leave to amend need not be granted where the amendment: (1) prejudices the 1 opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is 2 futile. Amerisource Bergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006); 3 Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). Prejudice to the defendant is the most 4 important factor, but amendment may be denied upon a sufficiently strong showing of the other 5 factors. See Eminence Capital, 316 F.3d at 1052; Keniston, 717 F.2d at 1300. The burden of 6 showing prejudice rests on the party opposing amendment. DCD Programs, Ltd. v. Leighton, 7 833 F.2d 183, 186 (9th Cir. 1987). 8 Here, Plaintiff contends that the event underlying his proposed amendment “is already 9 described in my complaint as part of the factual nucleus of my other claims.” (ECF No. 49 at 10 2.) Plaintiff admits that his original complaint “did not reflect the specificity necessary to state 11 an independent claim. I flesh out these facts in my first amended complaint.” (Id.) Plaintiff goes 12 on to explain: 13 I am well within my statute of limitations for filing my excessive force claim and I concluded this is best course of action to preserve right to sue. As opposed to filing a 14 separate complaint with parallel facts. . . . Trying these claims together would further achievement of justice . . . . A trial has not been set in this matter and discovery is 15 already being prolonged due to covid-19; therefore no party will be prejudiced by 16 amendment. 17 (ECF No. 49 at 2-3.) 18 Defendants oppose the requested amendment, arguing (1) Plaintiff previously agreed to 19 proceed only against the current defendants and on the current claims and has failed to provide 20 any explanation for his delay in adding new claims against new defendants; and (2) bringing 21 additional claims against additional defendants will result in prejudice to the current defendants 22 by causing additional and unnecessary delays in the progress of the case.1 (ECF No. 51 at 4-5) 23 Plaintiff initially filed this action on April 9, 2019. (ECF No. 1.) On May 28, 2019, the 24 Court entered a screening order. (ECF No. 10.) In that order, the Court found that Plaintiff 25 26 1 Defendants also contend that the proposed amendment would violate the Federal 27 Rules of Civil Procedure regarding joinder and that allowing amendment to add the claim 28 against Torres would be futile because the proposed claim is not cognizable under § 1983. (ECF No. 51 at 5.) The Court does not reach these additional contentions. 1 stated a cognizable claim for deliberate indifference to serious risk of harm in violation of the 2 Eighth Amendment against Defendants Kyle, Grossman, Thompson, Depovic, Moreno, Overly, 3 Gamez, and Castillo; and a claim for retaliation in violation of the First Amendment against 4 Defendants Kyle, Moreno, Wright, Overly, Gamez, and Castillo; but did not state any other 5 cognizable claims. (Id.) The Court gave Plaintiff the opportunity to either (1) file an amended 6 complaint; (2) notify the court that he did not want to file an amended complaint and was 7 instead willing to proceed only on the Eighth Amendment deliberate indifference to serious risk 8 of harm claim against Defendants Kyle, Grossman, Thompson, Depovic, Moreno, Overly, 9 Wright, Gamez, and Castillo; and the First Amendment retaliation claim against Defendants 10 Kyle, Moreno, Wright, Overly, Gamez, and Castillo; or (3) notify the court that he wished to 11 stand on his original complaint. (Id.) 12 On June 19, 2020, Plaintiff filed a notice in which he notified the Court that he was 13 willing to proceed only on the claims the Court had found cognizable in the screening order – 14 the Eighth Amendment deliberate indifference to serious risk of harm claim against Defendants 15 Kyle, Grossman, Thompson, Depovic, Moreno, Overly, Wright, Gamez, and Castillo; and the 16 First Amendment retaliation claim against Defendants Kyle, Moreno, Wright, Overly, Gamez, 17 and Castillo. (ECF No. 14.) In reliance on that notice, on July 3, 2019, the Court ordered that 18 the complaint be served on the relevant defendants (ECF No. 15); and on July 11, 2019, the 19 Court entered findings and recommendations recommending that all claims be dismissed 20 except for Plaintiff’s claims against Kyle, Grossman, Thompson, Depovic, Moreno, Overly, 21 Wright, Gamez, and Castillo for deliberate indifference to serious risk of harm in violation of 22 the Eighth Amendment; and against Defendants Kyle, Moreno, Wright, Overly, Gamez, and 23 Castillo for retaliation in violation of the First Amendment. (ECF No. 17.) Plaintiff did not file 24 any objections to the findings and recommendations, and the findings and recommendations 25 were adopted by the district judge on October 21, 2019. (ECF No. 31.) 26 Thus, Plaintiff was provided with an opportunity to amend his complaint more than a 27 year ago, and instead chose to proceed without amendment. Plaintiff provides no explanation 28 for his failure to amend his complaint when given the opportunity to do so, nor does he provide 1 an explanation for his more than one year delay in seeking to amend. The Court finds these 2 circumstances alone to be sufficient to deny Plaintiff’s motion to amend. See Swanson v. U.S. 3 Forest Svs., 87 F.3d 339, 345 (9th Cir. 1996) (affirming denial of leave to amend where movant 4 “previously had an opportunity to timely amend its complaint and it failed to do so”); see also 5 Calderón-Serra v. Wilmington Trust Co., 715 F.3d 14, 20 (1st Cir. 2013) (“Appreciable delay 6 alone, in the absence of good reason for it, is enough to justify denying a motion for leave to 7 amend.”). 8 Moreover, the Court finds that allowing amendment would result in additional, 9 unnecessary, and undue delay in this proceeding. Discovery has been ongoing since January 10 2020, and under the original schedule, fact discovery already would have closed and the 11 dispositive deadline would have passed. (See ECF No. 37.) That original schedule has been 12 modified multiple times due to the COVID-19 pandemic, resulting in what has already been a 13 delay in this proceeding. Allowing Plaintiff to amend the complaint would result in 14 significantly more delay. If Plaintiff is allowed to amend, the Court would first need to screen 15 the new claims against new the new defendants. Assuming that the new claims are cognizable 16 under § 1983, the Court would then need to facilitate service of process on the new defendants. 17 Once served, the new defendants would need to file their responsive pleadings and conduct 18 discovery. This additional, unnecessary, and undue delay would result in significant prejudice 19 to the current defendants. See Blue Cross & Blue Shield of Alabama v. Unity Outpatient 20 Surgery Ctr., 490 F.3d 718, 724 (9th Cir. 2007) (“Delay inherently increases the risk that 21 witnesses’ memories will fade and evidence will become stale.”). 22 Based on the foregoing, IT IS RECOMMENDED that the Plaintiff’s motion to amend 23 (ECF No. 49) be DENIED. 24 These findings and recommendations will be submitted to the United States district 25 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 26 thirty (30) days after being served with these findings and recommendations, the parties may 27 file written objections with the Court. The document should be captioned “Objections to 28 Magistrate Judge’s Findings and Recommendations.” UV ONE SUI OI ee OY VY VI 1 The parties are advised that failure to file objections within the specified time may result 2 the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. 6 || Dated: _ September 29, 2020 [see hey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28