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Smith v. Cox

United States District Court, D. Nevada

January 30, 2017

WILLIE T. SMITH, Plaintiff,
v.
JAMES COX, et al., Defendants.

          ORDER

         Before 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.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Willie 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.

         On June 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.

         II. MOTION TO AMEND

         1. Legal Standard

         Federal 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)).

         When 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).

         2. Discussion

         Plaintiff 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.)

         The 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.

         Third, 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.

         Fourth, 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.

         III. ...


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