(PC) Mitchell v. Diaz ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JOHN E. MITCHELL, Case No. 1:22-cv-00006-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT PLAINTIFF’S v. MOTION FOR LEAVE TO AMEND BE 12 DENIED T. RODRIGUEZ, 13 (ECF No. 53) Defendant. 14 OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 15 16 17 18 John Mitchell (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 19 filed pursuant to 42 U.S.C. § 1983. 20 This case is currently proceeding on Plaintiff’s First Amendment free exercise claim 21 against defendant Rodriguez. (ECF Nos. 27, 29, & 50). All other claims and defendants were 22 dismissed. (Id.). 23 On March 16, 2023, Plaintiff filed a motion for leave to amend, along with a proposed 24 amended complaint. (ECF Nos. 51 & 53). Plaintiff states that he wants to amend his complaint 25 to add a claim against defendant Rodriguez for violating the Fourteenth Amendment by 26 depriving Plaintiff of his religious property without due process. Plaintiff intended to include 27 this claim in his First Amended Complaint, but it was accidently omitted. 28 Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 1 15(a)(2). “[T]his policy is to be applied with extreme liberality.” Morongo Band of Mission 2 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); see also Waldrip v. Hall, 548 F.3d 729, 3 732 (9th Cir. 2008). “However, liberality in granting leave to amend is subject to several 4 limitations. Those limitations include undue prejudice to the opposing party, bad faith by the 5 movant, futility, and undue delay.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 6 F.3d 1047, 1058 (9th Cir. 2011) (citations and internal quotation marks omitted); see also 7 Waldrip, 548 F.3d at 732. “[I]t is the consideration of prejudice to the opposing party that 8 carries the greatest weight.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th 9 Cir. 2003) (per curiam). “Absent prejudice, or a strong showing of any of the remaining [] 10 factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id. 11 However, “[w]here the party seeking amendment knows or should know of the facts upon 12 which the proposed amendment is based but fails to include them in the original complaint, the 13 motion to amend may be denied.” De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 878 14 (9th Cir. 2000) (citation and internal quotation marks omitted). 15 The Court will recommend that Plaintiff’s motion be denied. 16 Plaintiff asserts that is attempting to add a due process claim based on deprivation of his 17 property that he accidently failed to assert in his First Amended Complaint.1 However, 18 Plaintiff included this claim in his First Amended Complaint (ECF No. 24, p. 13), the Court 19 screened the claim (ECF Nos. 27 & 29), and the claim was dismissed with prejudice and 20 without further leave to amend (ECF No. 27; ECF No. 29, p. 4) (“Plaintiff’s claims against 21 Defendants Stanley and Rodriguez for depriving Plaintiff of his religious property in violation 22 of his Fourteenth Amendment due process rights are DISMISSED for failure to state a 23 claim.”). Plaintiff provides no explanation as to why the Court should now allow this 24 previously dismissed claim to proceed, and his assertion that he accidently failed to include this 25 26 27 1 The Court notes that Plaintiff also appears to be attempting to change certain factual allegations in his First Amended Complaint, but he does not mention those changes in his motion or provide any explanation as to 28 why he should be allowed to make those changes at this time. (See ECF No. 1, p. 9; ECF No. 24, p. 11, ECF No. 51, p. 6l ECF No. 53). eee ee OE IE EEE OSE OE 1 in his First Amended Complaint is not accurate.” 2 As leave to amend is futile, the Court HEREBY RECOMMENDS that Plaintiffs 3 |) motion for leave to amend (ECF No. 53) be DENIED. 4 These findings and recommendations are submitted to the United States district judge 5 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 6 || (14) days after being served with these findings and recommendations, any party may file 7 || written objections with the court. Such a document should be captioned “Objections to 8 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 9 || served and filed within fourteen (14) days after service of the objections. The parties are 10 || advised that failure to file objections within the specified time may result in the waiver of rights 11 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 12 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. ‘5 ll Dated: March 17, 2023 [sJe— Fahey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 Tn his First Amended Complaint Plaintiff referred to the claim as being based on an authorized 24 || deprivation, while in his motion Plaintiff refers to the claim being based on an unauthorized deprivation. However, despite the change in wording, the Court already addressed this claim. Moreover, when dismissing this 25 || claim, the Court provided Plaintiff with the legal standards, and found that “Plaintiff alleges, at most, an unauthorized intentional deprivation of his property. As California law provides an adequate post-deprivation 26 remedy, the Court finds that Plaintiff fails to state a claim against defendant Rodriguez for depriving him of his religious property in violation of his Fourteenth Amendment due process rights.” (ECF No. 27, pgs. 13-14; ECF 27 || No. 29). Thus, if Plaintiff is now alleging that the deprivation was unauthorized, Plaintiff did not correct the deficiency identified by the Court and leave to amend is futile. 28