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Johnson v. Ndoc

United States District Court, D. Nevada

July 1, 2014

LAUSTEVEION JOHNSON, Plaintiff,
v.
NDOC, et al., Defendants.

FINDINGS AND RECOMMENDATIONS & ORDER

GEORGE FOLEY, Jr., Magistrate Judge.

This matter comes before the Court on Plaintiff's Motion for Leave to Amend Complaint (#39), filed on February 21, 2014. Defendants filed their Opposition (#43) on March 10, 2014. Plaintiff filed his Reply (#48) on March 19, 2014.

Under Federal Rule of Civil Procedure 15(a)(2), a party may amend a complaint only with the opposing party's written consent or with leave of the Court. Motions for leave to amend should be freely given when justice so requires. See Fed.R.Civ.P. 15(a)(2). A court may deny a motion to amend, if there is a showing of undue delay or bad faith on the part of the moving party, undue prejudice to the opposing party, or futility of the proposed amendments. See Foman v. Davis, 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of showing prejudice, futility, or one of the other recognized reasons for denying a motion to amend. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).

Here, Plaintiff requests leave to file his second Amended Complaint. Defendants oppose Plaintiff's Motion asserting that it is unclear and confusing as to how Plaintiff is attempting to amend his complaint averring that Plaintiff failed to allege any new causes of action or describe the basis for the additional defendants. See Doc. # 43. Defendants are also concerned that allowing Plaintiff to add additional parties could be prejudicial with the extent of discovery already completed. Id. Plaintiff, however, purports that he is only adding an additional claim for retaliation and correcting the names of those Defendants already named based on information he received during discovery. See Doc. # 48.

Based on the Court's review, it appears Plaintiff's first Amended Complaint (#12) and second Amended Complaint (#39-1) are virtually identical. The only differences appear to be an additional claim of retaliation, deletion of the class action allegations, and corrected names for the two John Does and previously misnamed Defendants. Plaintiff also added the Nevada Department of Corrections ("NDOC") as a Defendant and terminated Defendant Miller.

Specifically, Plaintiff indicated that he is removing Defendant Miller for whom the Attorney General accepted service as Lloyd Millar. See Dkt. #39, #48 at pg. 2. Furthermore, Plaintiff provided the following updated information clarifying the identities of the Defendants already named in the action: Chaplain Kent Belmore (previously named as Buck), Senior C/O Daniel Brown (previously named as Brown), C/O Davis (previously named as Davis), C/O Jeremiah Hall (previously named as Hall), Kitchen Sgt. Paul Hunt (previously named as Hunns), Sgt. James Lester (previously named as John Doe Sgt.), C/O Paul Malay (previously named as P. Mayday), C/O Nakashima (previously named as John Doe C/O), and Senior C/O Robert Ramsey (previously named as Rowley).

The Attorney General has accepted service on behalf of Defendants Renee Baker, Daniel Brown, Ronald Bryant, Harold Byrne, James Greg Cox, Christopher Davis, Jeremiah Hall, Brea Howard, Paul Hunt, Charles Kirchen, Brandon Lawrence, James Lester, Rod Lightsey, Luis Lopez, Paul Malay, Lloyd Millar, William Moore, John Nakashima, Curtis Rigney, Walter Romero, Tasheena Sandoval, Andrew Silverstein, Drugh Waggener, and April Witter. See Dkt. #71. The Attorney General also filed the last known addresses under seal of Defendants Watson, Kennedy, Kent Belmore, and Robert Ramsey for service by the U.S. Marshals. See Dkt. #52, #68. Therefore, the proposed changes do not add additional parties that would prejudice the Defendants.

Furthermore, because Plaintiff's additional retaliation claim arises out of the same nexus of facts at issue in the first Amended Complaint (#12), the Court finds it will not prejudice Defendants to allow Plaintiff to bring the additional claim of retaliation in his second Amended Complaint. Finding the changes in Plaintiff's second Amended Complaint to be minor and necessary to ensure the proper Defendants to the action are present, the Court will grant Plaintiff's Motion for Leave to File an Amended Complaint (#39). The second Amended Complaint (#39-1) shall be filed and screened pursuant to 28 U.S.C. § 1915A.

I. Screening Pursuant to 28 U.S.C. § 1915A

Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d. 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner's claim, "if the allegation of poverty is untrue, " or if the action "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d. 1103, 1106 (9th Cir. 1995).

...

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., see Papasan v. Allain, 478 U.S. 265, 286 (1986).

A reviewing court should "begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1950 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. "Determining whether a complaint states a ...


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