(PC) White-Soto v. Starr ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 YASYN WHITE-SOTO, Case No. 1:19-cv-00457-NONE-BAM (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO AMEND WITHOUT PREJUDICE 13 v. (ECF No. 38) 14 STARR, et al., ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 15 Defendants. FAILURE TO PROSECUTE (ECF No. 33) 16 TWENTY-ONE (21) DAY DEADLINE 17 18 Plaintiff Yasyn White-Soto (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 20 Defendant Starr for excessive force in violation of the Eighth Amendment and retaliation in 21 violation of the First Amendment. 22 On June 18, 2020, Defendant filed a motion for summary judgment on the ground that 23 Plaintiff failed to exhaust his administrative remedies. (ECF No. 33.) Following an extension of 24 time, Plaintiff’s opposition was due on or before August 31, 2020. (ECF No. 41.) 25 On July 8, 2020, during the pendency of Defendant’s motion for summary judgment and 26 prior to the deadline for the filing of motions to amend pleadings, Plaintiff filed a motion for 27 leave to file an amended complaint. (ECF No. 38.) Defendant filed an opposition on July 29, 28 2020. (ECF No. 42.) Plaintiff did not file a reply. This motion is deemed submitted. Local Rule 1 230(l). 2 I. Motion to Amend 3 A. Parties’ Positions 4 In his motion, Plaintiff requests leave to file an amended complaint “to add factual 5 information, as it relates to his civil case,” and further states that since filing suit he has 6 discovered that there were other defendants involved in the violation of his civil rights. (ECF No. 7 38.) Plaintiff also requests permission to correct any and all defects in this case. (Id.) Plaintiff 8 has not attached a proposed amended complaint. 9 Defendant opposes the motion solely on the basis that Plaintiff failed to include a 10 proposed amended complaint for the Court’s evaluation and screening. (ECF No. 42.) 11 B. Legal Standard 12 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 13 pleading once as a matter of course at any time before a responsive pleading is served. 14 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 15 party. Fed. R. Civ. P. 15(a). “Rule 15(a) is very liberal and leave to amend shall be freely given 16 when justice so requires.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 17 (9th Cir. 2006) (citation and quotation omitted). 18 However, courts “need not grant leave to amend where the amendment: (1) prejudices the 19 opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is 20 futile.” Id. These factors do not carry equal weight. Prejudice is the most important factor to 21 consider. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). 22 C. Discussion 23 While it is procedurally improper for Plaintiff to file a motion to amend without including 24 a proposed amended complaint, this procedural defect is easily cured and is not a sufficient 25 reason to deny leave to amend that should be “freely given when justice so requires.” See 26 AmerisourceBergen Corp., 465 F.3d at 951. The Court further notes that Defendant has not 27 argued that there will be any prejudice or undue delay, or that the motion to amend is futile or 28 sought in bad faith. Nevertheless, Defendant is correct that Plaintiff’s pleadings are subject to 1 screening pursuant to the in forma pauperis statute, and the Court cannot screen an amended 2 complaint that has not been filed. 3 The Court therefore finds it appropriate to deny the motion without prejudice and permit 4 Plaintiff to cure the procedural defect by re-filing his motion and including a proposed amended 5 complaint that is “complete in itself without reference to the prior or superseded pleading,” as 6 required by Local Rule 220. If Plaintiff chooses to re-file his motion to amend, he should address 7 the factors identified above, specifically whether the filing of an amended complaint at this late 8 stage will cause undue delay or prejudice to Defendant or any defendants he wishes to add to this 9 action. 10 II. Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment 11 Meanwhile, Defendant’s motion for summary judgment remains pending. While the 12 Court granted Plaintiff leniency with respect to his opposition while the motion to amend was 13 pending, Plaintiff remains obligated to respond to the dispositive motion. 14 Defendant’s motion for summary judgment was filed on June 22, 2020. (ECF No. 33.) In 15 the motion, Plaintiff was provided with notice of the requirements for opposing a motion for 16 summary judgment. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 17 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF 18 No. 33-7.) Pursuant to Local Rule 230(l) and Federal Rule of Civil Procedure 6(d), as well as the 19 Court’s order granting Plaintiff’s motion for extension of time, Plaintiff’s opposition or statement 20 of non-opposition was therefore due on or before August 31, 2020. The extended deadline for 21 Plaintiff to respond to Defendant’s motion for summary judgment has expired, and he has not 22 otherwise been in contact with the Court. Plaintiff will be permitted one final opportunity to 23 show cause why this action should not be dismissed with prejudice. 24 III. Order 25 Based on the foregoing, IT IS HEREBY ORDERED as follows: 26 1. Plaintiff’s motion to amend, (ECF No. 38), is DENIED without prejudice to re-filing with 27 a proposed first amended complaint; 28 /// 1 2. Plaintiff shall show cause by WRITTEN RESPONSE within twenty-one (21) days of 2 service of this order why this action should not be dismissed, with prejudice, for failure to 3 prosecute; 4 3. Plaintiff may comply with the Court’s order to show cause by filing an opposition or 5 statement of non-opposition to Defendant’s motion for summary judgment; and 6 4. Plaintiff is warned that if he fails to comply with the Court’s order, this matter will 7 be dismissed, with prejudice, for failure to prosecute. 8 IT IS SO ORDERED. 9 10 Dated: November 23, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28