(PC) Turner v. Ullery ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, No. 2:22-cv-0002 TLN KJN P 12 Plaintiff, 13 v. ORDER 14 MICHAEL ULLERY, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner, proceeding pro se. Several matters are pending. 18 Motion to Accommodate 19 First, on January 9, 2023, plaintiff filed a motion to accommodate people with disabilities. 20 While not entirely clear, it appears plaintiff wants the court to adopt certain rules an unidentified 21 municipal court applies to accommodate people with disabilities to participate in court business as 22 parties or witnesses, the majority of which apply to court hearings. (ECF No. 64.) However, in 23 this court, pursuant to Local Rule 230(l), all motions in prisoner cases are submitted on the 24 papers. Thus, the undersigned finds that plaintiff’s motion is not relevant and is denied. Should 25 plaintiff need special accommodation in connection with a court hearing in the future, he may 26 seek court relief at that time. 27 //// 28 //// 1 Motion to Amend 2 Second, on December 22, 2022, the undersigned recommended that defendant Dr. Ratton 3 be dismissed from this action. However, on January 17, 2023, plaintiff filed a motion to amend; 4 defendants Ullery, Nouged and Surineni filed an opposition; plaintiff did not file a reply. 5 Legal Standard 6 Federal Rule of Civil Procedure 15 requires that a plaintiff obtain either consent of the 7 defendant or leave of court to amend its complaint once the defendant has answered, but “leave 8 shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a); see, e.g., Chodos v. W. 9 Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (leave to amend granted with “extreme 10 liberality”). 11 In determining whether to grant leave to amend, a court is to consider five factors: 12 “(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and 13 (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 14 805, 808 (9th Cir. 2004). The factors are not weighed equally. “Futility of amendment can, by 15 itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 16 (9th Cir. 1995). Undue delay, “by itself . . . is insufficient to justify denying a motion to amend.” 17 Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quotation 18 marks omitted) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)). “[I]t is the 19 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 20 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). “Absent prejudice, or a 21 strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) in 22 favor of granting leave to amend.” Id. 23 Plaintiff’s motion to amend was not accompanied by a proposed amended complaint. As 24 a prisoner, plaintiff’s pleadings are subject to evaluation by this court pursuant to the in forma 25 pauperis statute. See 28 U.S.C. § 1915A. Because plaintiff did not submit a proposed second 26 amended complaint, the court is unable to evaluate it. Plaintiff was previously informed of such 27 requirement on August 29, 2022. (ECF No. 34.) Despite being previously informed of the 28 factors the court reviews to determine whether to grant a motion to amend, plaintiff failed to 1 address any of the factors under Nunes, 375 F.3d at 808. Indeed, this action was filed on 2 December 23, 2021, and plaintiff failed to explain why he is only now attempting to raise 3 additional claims. 4 To the extent plaintiff intended his document styled, “Motion to Amend Complaint to 5 Plaintiff’s First Amended Complaint,” to be his proposed second amended complaint, plaintiff is 6 advised that such document is insufficient to constitute an operative pleading. (ECF No. 65 at 4- 7 6.) The document does not clearly identify the individuals plaintiff intends to name as 8 defendants. Fed. R. Civ. P. 10(a). In his pleading, plaintiff is required to name every defendant 9 in the caption of his complaint (id.), and this court requires plaintiff to identify each defendant 10 and provide the defendant’s address for purposes of service of process. In addition, the filing 11 does not set forth what relief plaintiff seeks. 12 Further, the undersigned previously denied plaintiff leave to amend to name Dr. Ratton as 13 a defendant; it was recommended that Dr. Ratton be dismissed as a defendant, and the findings 14 and recommendations are awaiting review by the district court. (ECF No. 58.) 15 Finally, the court already screened plaintiff’s operative pleading and found plaintiff stated 16 potentially cognizable Eighth Amendment claims as to defendants Ullery and Nouged, who have 17 filed an answer, and defendant Surineni. (ECF No. 50.) In the current motion, plaintiff attempts 18 to add new claims which do not appear to be related to plaintiff’s claims against defendants 19 Ullery, Nouged and Surineni.1 Such claims must be pursued in a separate action. 20 This action has been pending for over a year. Plaintiff was previously granted leave to 21 amend which required vacating the discovery and scheduling order. (ECF No. 50.) Therefore, 22 1 A plaintiff may properly assert multiple claims against a single defendant. Fed. Rule Civ. P. 18. 23 In addition, a plaintiff may join multiple defendants in one action where “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the 24 same transaction, occurrence, or series of transactions and occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). Unrelated 25 claims against different defendants must be pursued in separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). This rule is intended “not only to prevent the sort of morass [a 26 multiple claim, multiple defendant] suit produce[s], but also to ensure that prisoners pay the 27 required filing fees -- for the Prison Litigation Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without prepayment of the required fees. 28 U.S.C. 28 § 1915(g).” George, 507 F.3d at 607. 1 | the undersigned finds that any further leave to amend would unduly prejudice defendants given 2 || the delay that has already taken place. Once defendant Surineni files a responsive pleading, the 3 || court will issue a discovery and scheduling order. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff's January 9, 2023 motion (ECF No. 64) is denied without prejudice; and 6 2. Plaintiffs motion to amend (ECF No. 65) is denied without prejudice. 7 || Dated: February 23, 2023 Foci) Aharon 9 KENDALL J. NE /turn002.ace UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28