United States District Court, D. Nevada
WILLIE T. SMITH, Plaintiff,
JAMES COX, et al., Defendants.
the court is plaintiff's motion for leave to file an
amended complaint (ECF No. 18), which defendant opposed (ECF
No. 24). Plaintiff subsequently filed a motion to strike (ECF
No. 26), to which defendant responded (ECF No. 29). Also
before the court is plaintiff's motion for verification
(ECF No. 27). For the following reasons, plaintiff's
motion to amend (ECF No. 18) is granted, plaintiff's
motion to strike (ECF No. 26) is denied, and plaintiff's
motion for verification (ECF No. 27) is denied as moot.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
T. Smith (“plaintiff”) is an inmate in the
custody of the Nevada Department of Corrections
(“NDOC”). Presently, plaintiff is incarcerated at
Ely State Prison (“ESP”) in Ely, Nevada. On
October 9, 2015, plaintiff filed a civil rights complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 4). The court
entered a screening order on March 31, 2016 (ECF No. 3), by
which plaintiff is permitted to proceed on an Eighth
Amendment deliberate indifference to a serious medical need
claim against defendant Isidro Baca.
7, 2016, the District Court dismissed with prejudice
defendants James Cox, Romeo Aranas, J. Garner, and J. Keast
from this action. (See ECF No. 6.) On October 5,
2016, plaintiff filed a motion for leave to amend his
complaint (ECF No. 18), in which he seeks to identify Jane
Doe defendant as Dr. Karen Gedney and clarify his First
Amendment retaliation claim.
MOTION TO AMEND
Rule of Civil Procedure 15(a)(2) instructs that “[t]he
court should freely give leave [to amend a pleading] when
justice so requires.” However, the ability to amend is
not without limits. Federal courts balance five factors when
considering a motion to amend: (1) bad faith; (2) undue
delay; (3) prejudice to the opposing party; (4) the futility
of the amendment; and (5) whether the plaintiff has
previously amended his complaint. Desertrain v. City of
Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014). The
factors do not weigh equally; as the Ninth Circuit has
explained, prejudice receives greatest weight. Eminence
Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003). Defendants bear the burden of establishing
prejudice, and absent its presence or a “strong
showing” under the other factors, there is a
presumption in favor of permitting amendment. Id.
(citing DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 186-87 (9th Cir. 1987)).
considering prejudice, the court may weigh against the movant
the amended pleading's great alteration of the
litigation's nature and its effect of requiring an
entirely new course of defense. Morongo Band of Mission
Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).
Alone, such alteration is not fatal. Id. In
contrast, futility “alone can justify the denial of a
motion for leave to amend.” Nunes v. Ashcroft,
375 F.3d 805, 809 (9th Cir. 2003). Futility arises when the
amendment is legally insufficient, Miller v.
Rykoff-Sexon, Inc., 845 F.3d 209, 214 (9th Cir. 1988),
or “where the amended complaint would . . . be subject
to dismissal[, ]” Steckman v. Hart Brewing,
Inc., 143 F.3d 1293, 1298 (9th Cir. 1998).
moves to amend to cure alleged deficiencies in his complaint
as well as identify Jane Doe defendant as Dr. Karen Gedney.
(ECF No. 18 at 3.) However, insofar as plaintiff attempts to
re-allege the dismissed claims against defendants Cox,
Aranas, Garner, and Keast, those claims will not proceed, as
those defendants have been dismissed with prejudice.
(See ECF No. 6 at 2.) Defendant opposes the proposed
amended complaint because he claims it is prejudicial,
produces undue delay, and is futile (ECF No. 24 at 1.)
court finds that the motion to amend should be granted, as
the Desertrain factors weigh in plaintiff's
favor. First, rather than bad faith, the record demonstrates
that plaintiff is acting in good faith to amend his complaint
to replace one of the Doe defendants and correct purported
deficiencies in the original complaint as to his First
Amendment retaliation claim, as permitted by the screening
order. (See ECF No. 3 at 5.) Second, while plaintiff
did move to amend well after the thirty-day leave to amend
period had expired, it should be noted that plaintiff moved
to amend before defendant filed his motion for summary
judgment and no scheduling order has been issued in this
case. Therefore, the court finds that plaintiff did not delay
in seeking amendment.
defendant is not prejudiced by the amendment, as it merely
seeks to clarify Jane Doe's identity and seeks to clarify
plaintiff's First Amendment retaliation claim, which the
screening order gave plaintiff leave to amend. (See
ECF No. 3 at 5.) Defendant argues that he is in fact
prejudiced as he has been litigating the case for months, has
attended a hearing based on plaintiff's current
complaint, has attended a mediation, and has drafted and
filed a motion for summary judgment in this case. (ECF No. 24
at 3.) As discussed above, plaintiff moved to amend before
defendant's motion for summary judgment was filed and no
scheduling order has been filed in this case. Further,
because plaintiff is merely identifying a Doe defendant and
clarifying (by naming as defendants Baca and Gedney) his
First Amendment retaliation claim, the court does not find
that the amended complaint greatly alters the
litigation's nature or requires an entirely new course of
defense. Morongo Band of Mission Indians, 893 F.2d
at 1079. Therefore, the court does not find that defendant is
prejudiced by amendment.
the court does not find amendment to be futile because
amendment here is proper to identify the Doe defendant and
name defendants Baca and Gedney in plaintiff's First
Amendment retaliation claim. Finally, plaintiff has not yet
amended, which also weighs in his favor. In sum, the five
Desertrain factors each weigh in his favor, and,
therefore, the court concludes that amendment is proper.