(PC) Hunter v. Fisher ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NATHAN HUNTER, Case No. 1:19-cv-00625-AWI-BAM (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT 13 v. (ECF No. 62) 14 FISHER, et al., ORDER DIRECTING CLERK OF COURT TO 15 Defendants. FILE FIRST AMENDED COMPLAINT LODGED OCTOBER 8, 2020 16 (ECF No. 63) 17 ORDER DENYING DEFENDANTS’ 18 MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST, WITHOUT 19 PREJUDICE TO RE-FILING (ECF No. 46) 20 ORDER FOR DEFENDANTS TO RE-FILE 21 MOTION FOR SUMMARY JUDGMENT OR 22 NOTICE OF INTENT NOT TO RE-FILE WITHIN THIRTY (30) DAYS 23 24 I. Procedural Background 25 Plaintiff Nathan Hunter (“Plaintiff”) is a state prisoner proceeding pro se and in forma 26 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against 27 Defendants Cui, Thompson, Fisher, and Hernandez for excessive force in violation of the Eighth 28 Amendment. 1 On June 8, 2020, Defendants filed a motion for summary judgment on the ground that 2 Plaintiff failed to properly exhaust his available administrative remedies. (ECF No. 46.) 3 Defendants’ motion for summary judgment was re-served several times, with appropriate 4 extensions of Plaintiff’s opposition deadline. (See ECF Nos. 47, 51, 53, 55, 56.) Plaintiff filed an 5 opposition on July 7, 2020, before the final re-service of Defendants’ motion, and another nearly 6 identical opposition on July 17, 2020. (ECF Nos. 54, 58.) Defendants filed a reply to Plaintiff’s 7 first opposition on July 14, 2020. (ECF No. 57.) Following a brief discovery dispute, Plaintiff 8 filed a supplemental opposition on November 12, 2020, (ECF No. 66), and Defendants timely 9 filed a reply to the supplemental opposition on December 3, 2020, (ECF No. 69). The motion is 10 fully briefed. 11 On October 8, 2020, during the briefing on Defendants’ summary judgment motion, 12 Plaintiff filed a motion for leave to amend the complaint, together with a proposed first amended 13 complaint. (ECF Nos. 62, 63.) Defendants did not file a response, and the deadline to do so has 14 expired. 15 Currently before the Court are Defendants’ motion for summary judgment for failure to 16 exhaust available administrative remedies and Plaintiff’s motion to amend the complaint. The 17 motions are deemed submitted. Local Rule 230(l). 18 II. Motion to Amend 19 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 20 pleading once as a matter of course at any time before a responsive pleading is served. 21 Otherwise, a party may amend only by leave of the court or by written consent of the adverse 22 party, and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). “Rule 15(a) 23 is very liberal and leave to amend shall be freely given when justice so requires.” 24 AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation and 25 quotation omitted). However, courts “need not grant leave to amend where the amendment: 26 (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in 27 litigation; or (4) is futile.” Id. 28 /// 1 In his motion, Plaintiff states that he requests leave to amend the complaint because 2 Defendants’ motion for summary judgment was filed only to address exhaustion. (ECF No. 62.) 3 Plaintiff states that he received his Third Level decision, exhausting his administrative 4 grievances. (Id.) A copy of the decision from the Office of Appeals, dated August 21, 2020, is 5 attached to Plaintiff’s proposed first amended complaint as Exhibit A. (ECF No. 63, p. 9.) 6 Pursuant to the Court’s February 24, 2020 discovery and scheduling order, all stipulated 7 amendments or motions to amend pleadings were to be filed by August 24, 2020. (ECF No. 34, 8 p. 2.) As Plaintiff’s motion to amend was not filed until October 8, 2020 (and was not mailed 9 until October 4, 2020), it is technically untimely. 10 Nevertheless, Defendants’ failure to file an opposition or otherwise respond to Plaintiff’s 11 motion to amend and proposed first amended complaint is deemed a waiver of any opposition to 12 the granting of the motion and the Court therefore considers the motion unopposed. Local Rule 13 230(l). 14 In considering the relevant factors, the Court finds no evidence of bad faith, undue delay 15 in litigation, or futility. It appears Plaintiff filed his motion and proposed amended complaint as 16 soon as practicable following Plaintiff’s receipt of the Third Level decision on his grievance. 17 Further, as the motion is unopposed, the Court finds no evidence of prejudice to Defendants. 18 The Court has reviewed the lodged first amended complaint and notes that Plaintiff has 19 essentially re-written the allegations of the original complaint, aside from correcting the spelling 20 of Defendant Cui’s name, adding information about the exhaustion of his administrative 21 remedies, and excluding claims and defendants already dismissed during the prior screening of 22 the complaint. To the extent the first amended complaint does contain allegations related to 23 claims or defendants already dismissed by the prior screening order, the Court clarifies that the 24 only claims proceeding are the claims against Defendants Cui, Thompson, Fisher, and Hernandez 25 for excessive force in violation of the Eighth Amendment. 26 III. Defendant’s Motion for Summary Judgment in Light of Saddozai v. Davis 27 During the pendency of the parties’ motions, the United States Court of Appeals for the 28 Ninth Circuit decided the case of Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). The parties 1 have not filed any briefs addressing the potential effect of Saddozai on the instant action, nor has 2 the Court yet ordered briefing. 3 In Saddozai, the Ninth Circuit held that “a prisoner who has fully complied with the 4 PLRA’s exhaustion requirement need not file an entirely new federal case simply because he had 5 not exhausted when he filed his original federal complaint.” Id. at 706. Further, because a 6 supplemental complaint can defeat an affirmative defense applicable to an earlier complaint, 7 Federal Rule of Civil Procedure 15 allows prisoners to supplement a complaint to add facts 8 regarding administrative exhaustion. Id. at 709. 9 In light of the filing of Plaintiff’s first amended complaint, the alleged exhaustion of 10 Plaintiff’s relevant administrative grievance as of August 21, 2020, and the Ninth Circuit’s 11 decision in Saddozai, the Court finds that the current briefing on Defendants’ motion for 12 summary judgment is no longer sufficient to decide the motion. Therefore, to allow all parties an 13 opportunity to address the potential changed circumstances of this action, the Court denies the 14 pending motion for summary judgment for failure to exhaust administrative remedies, without 15 prejudice to re-filing, if appropriate. 16 Defendants are permitted thirty days to re-file their motion for summary judgment on the 17 issue of exhaustion, including a discussion as to the applicability of Saddozai to the instant action 18 and Plaintiff’s first amended complaint, if appropriate. If a motion is re-filed, the deadlines for 19 Plaintiff’s opposition and Defendants’ reply brief shall follow Local Rule 230(l). 20 In the alternative, Defendants may file a notice that they do not intend to re-file a motion 21 for summary judgment on the issue of exhaustion. 22 IV. Order 23 Accordingly, IT IS HEREBY ORDERED that: 24 1. Plaintiff’s motion for leave to amend complaint, (ECF No. 62), is GRANTED; 25 2. The Clerk of the Court is directed to file the first amended complaint lodged on October 8, 26 2020, (ECF No. 63), as the operative complaint in this action; 27 3. Defendants’ motion for summary judgment, (ECF No. 46), is DENIED, without prejudice 28 to re-filing; 1 4. Within thirty (30) days from the date of service of this order, Defendants are DIRECTED 2 to either: 3 a. Re-file their motion for summary judgment on the issue of exhaustion, including a 4 discussion as to the applicability of Saddozai v. Davis, 35 F.4th 705 (9th Cir. 5 2022), to the instant action and Plaintiff’s first amended complaint; or 6 b. File a notice that they do not intend to re-file their motion for summary judgment 7 on the issue of exhaustion; and 8 5. If Defendants fail to file a response in compliance with this order, the Court will deem the 9 issue of exhaustion waived. 10 IT IS SO ORDERED. 11 12 Dated: January 26, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28