United States District Court, D. Nevada
ORDER(1) GRANTING MOTION TO AMEND, (2)DENYING WITHOUT
PREJUDICE RENEWED MOTION FOR SUMMARY JUDGMENT AND MOTION TO
STRIKE, AND (3) MODIFYING BRIEFING SCHEDULE (ECF NOS. 62, 87,
P. GORDON UNITED STATES DISTRICT JUDGE.
Brandyn Gayler moves to amend his complaint to clarify
factual allegations regarding his equal protection claim and
to substitute (1) James Dzurenda for formerly named defendant
James Cox as the director of the Nevada Department of
Corrections (NDOC) and (2) Brian Williams for formerly named
defendant Dwight Neven as the warden of High Desert State
Prison (HDSP). The defendants oppose, arguing Gayler has
unduly delayed. The defendants also argue they will be
prejudiced because Dzurenda and Williams have not been
involved in this lawsuit, were not in their respective
positions at the time this lawsuit was filed, and were not
involved in the grievance process that preceded the lawsuit.
The defendants also suggest there is bad faith because
Gayler's counsel knew or should have known about Dzurenda
and Williams becoming the new director and warden long ago.
Finally, they argue amendment would be futile because
Dzurenda and Williams had no involvement in implementing the
allegedly unconstitutional policy at issue in this lawsuit.
The defendants request that I first resolve the pending
summary judgment motion before ruling on the motion to amend.
a plaintiff may amend its complaint “once as a matter
of course within . . . 21 days of serving it, ” or
within 21 days after service of a responsive pleading or
motion. Fed.R.Civ.P. 15(a)(1). Otherwise, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). “The court should freely give leave when
justice so requires.” Id.; see also Foman
v. Davis, 371 U.S. 178, 182 (1962) (“Rule 15(a)
declares that leave to amend ‘shall be freely given
when justice so requires'; this mandate is to be
heeded.”). I consider five factors to assess whether to
grant leave to amend: (1) bad faith, (2) undue delay, (3)
prejudice to the opposing party, (4) futility of amendment[,
] and (5) whether plaintiff has previously amended the
complaint. Sonoma Cnty. Ass'n of Retired Emps. v.
Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013).
Whether to grant leave to amend lies within my discretion.
Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1087
(9th Cir. 2002).
is no evidence of bad faith. Gayler initially filed this
action pro se. Pro bono counsel has stepped in and attempted
to clarify the allegations and the proper defendants. These
same factors affect the delay analysis. Following pro bono
counsel's appointment, the parties engaged in discovery
and motion practice that have informed the motion to amend.
The court recently approved a schedule to reopen discovery
and to submit supplemental briefs on the pending motions for
summary judgment and to strike. ECF No. 92. Because discovery
has been reopened and the briefing on the pending motions
will not be completed until mid-September, amendment will not
unduly delay the case nor are the defendants prejudiced by
amendment. The prior efforts at amending were not substantive
and were prior to counsel's appointment. ECF Nos. 16, 25.
only question is whether the substitution of defendants
Dzurenda and Williams is futile. In terms of official
capacity claims for injunctive or declaratory relief, the
substitution of Dzurenda and Williams for Cox and Neven is
automatic under Federal Rule of Civil Procedure 25(d)
(“An action does not abate when a public officer who is
a party in an official capacity dies, resigns, or otherwise
ceases to hold office while the action is pending. The
officer's successor is automatically substituted as a
party.”). There is nothing before me that suggests the
policy about which Gayler complains has been changed so the
controversy is not moot. See Spomer v. Littleton,
414 U.S. 514 (1974); Mayor of Philadelphia v. Educational
Equality League, 415 U.S. 605 (1974).
Gayler also seeks monetary damages against Dzurenda and
Williams in the proposed amended complaint. ECF No. 94-1 at
12. NDOC is an arm of the state of Nevada and thus Dzurenda
and Williams are state officials. Black v. Nevada
Dep't of Corr., 2:09-cv-02343-PMP-LRL, 2010 WL
2545760, *2 (D. Nev. June 21, 2010). A state official sued in
his or her official capacity for monetary damages is not a
person subject to suit under 42 U.S.C. § 1983. Will
v. Michigan Dep't of State Police, 491 U.S. 58, 71
(1989). Therefore, Gayler cannot recover monetary damages
against Dzurenda and Williams sued in their official
capacities under § 1983. Other than this clarification,
the amended complaint is not futile. I therefore will grant
Gayler's motion to amend.
decline to defer consideration of the motion to amend until
after I rule on the motion for summary judgment. The parties
have agreed to extend the briefing schedule on that matter
into September. Waiting until then to decide the motion to
amend would only prolong the proceedings. In light of the
amended complaint and the potential for new information
uncovered during the reopened discovery period, rather than
have the parties file supplemental briefs the better course
is to deny the pending motion for summary judgment and
related motion to strike without prejudice and enter a new
briefing schedule for summary judgment following the close of
THEREFORE ORDERED that plaintiff's motion for leave to
amend the complaint (ECF No. 94) is GRANTED. Pursuant to
Local Rule LR 15-1(b), within 10 days of the date of this
order plaintiff Brandyn Gayler shall file and serve the
amended complaint that is attached to his motion.
FURTHER ORDERED that the defendants' renewed motion for
summary judgment (ECF No. 62) is DENIED without prejudice.
FURTHER ORDERED that the plaintiff's motion to strike
(ECF No. 87) is DENIED without prejudice.
FURTHER ORDERED that the scheduling order (ECF No. 92) is
modified as follows:
deadlines for supplemental briefing on the motion for summary
judgment and motion to strike are vacated.
deadline to file motions for summary judgment is July 31,
2017 with a normal briefing schedule to follow.
deadline for the joint pre-trial order remains at 30 days
after the court ...