United States District Court, D. Nevada
JOSEPH M. ANDERSON, Plaintiff,
JAMES “GREG” COX, et al., Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB MAGISTRATE JUDGE.
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the Local Rules of Practice, LR 1B
the court is Plaintiff's Motion for Leave to File an
Amended Complaint. (ECF No. 45, Proposed Am. Compl. at ECF
No. 45-1.) Defendants filed a response. (ECF No.
50.) Plaintiff filed a reply. (ECF No. 52.) After a thorough
review, it is recommended that the motion be denied.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), proceeding pro se with this action
pursuant to 42 U.S.C. § 1983. (Pl.'s Am. Compl., ECF
No. 7.) The events giving rise to this action took place
while Plaintiff was housed at Lovelock Correctional Center
(LCC). (Id.) Defendants are Jonathan Ball, Quentin
Byrne, Tara Carpenter, James “Greg” Cox, Ray
East, Sheryl Foster, Kara Krause, Robert LeGrand, E.K.
McDaniel, Valaree Olivas, Jethro Parks, and James Stogner.
(Screening Order, ECF No. 8.)
filed his original Complaint, which the court screened and
allowed some claims to proceed, and granted Plaintiff leave
to amend with respect to others. (ECF Nos. 5, 6.) He
subsequently filed his Amended Complaint (ECF No. 7.) The
court screened the Amended Complaint and allowed the
following claims to proceed: (1) claims under the First
Amendment Free Exercise Clause and Religious Land Use and
Institutionalized Persons Act (RLUIPA) in Count I against
Cox, McDaniel, Foster, Stogner, Krause, Olivas, East and
Ball, based on allegations that: (a) Cox, McDaniel, Foster,
Stogner and Krause changed Administrative Regulation (AR) 810
to deny Wiccans (Plaintiff's faith) access to incense,
herbs and teas while other faiths have the ability to
purchase these items, (b) Olivas interfered with the
religious grounds by destroying the sacred ritual area where
Wiccans and other pagans practice their faith, and (c) East
and Ball deprived him of his religious property; (2) a First
Amendment retaliation claim in Count I against Parks based on
the allegation that Parks subjected Plaintiff to oppressive
cell searches because of his religion, and the searches were
intended to chill his right to practice his religion without
advancing any legitimate correctional goal; (3) an Equal
Protection Clause claim in Count II against Cox, McDaniel,
Foster, Krause, Stogner and LeGrand, based on allegations
that they excluded Wiccans from access to the previously
permitted religious materials while allowing mainstream
religious faith groups access to those items; and (4) a
conspiracy claim under 42 U.S.C. § 1985(3) against Cox,
McDaniel, Foster, LeGrand, Carpenter, Byrne, and Olivas,
based on allegations that they fostered a policy of harassing
cell searches directed at Wiccans and impeded Plaintiff's
efforts to seek changes to the alleged discriminatory policy.
(ECF No. 8.)
have filed a motion for summary judgment, arguing that
Plaintiff failed to exhaust his administrative remedies as to
most of the claims, that the statute of limitations bars the
claims against East and Ball, and that Parks did not
retaliate against Plaintiff. (ECF No. 27.) After granting
Plaintiff an initial extension of time, and then permitting
him to conduct certain discovery and allowing the parties to
supplement their briefing, the motion for summary judgment is
now fully briefed. On June 27, 2017, Plaintiff filed his
motion seeking leave to amend. (ECF Nos. 45, 45-1.)
motion, Plaintiff states that he named John and Jane Does in
his First Amended Complaint (citing ECF No. 7 at 6), and that
since filing the Amended Complaint he has been provided
information concerning the identities of the John and Jane
Does, and has discovered new information regarding their role
in violating his rights. (ECF No. 45 at 1.) He identifies the
John and Jane Does as: Dwayne Deal, Sergeant Sterling Gentry,
Sergeant Ramone Olivas, Correctional Officer Ashley Angus,
LCC Chaplain Anthony Carrasco, NDOC Director James Dzurenda,
LCC Warden Renee Baker, Chaplain Richard Snyder, Warden H.
Wickhem. (Id. at 2.) The proposed amended complaint
also references a Deputy Attorney General John Doe.
(Id.) Plaintiff claims that he discovered the
identities of these defendants when he reviewed the exhibits
filed in support of Defendants' motion for summary
judgment. (Id.) He maintains that the claims relate
back to the original complaint. (Id. at 5.) He also
states that he is “supplementing” the complaint
pursuant to Rule 15(d), by adding Count III, and that defense
counsel was aware Plaintiff would raise this when grievance
20063012337 became exhausted. (Id.) He claims there
is no prejudice to Defendants in allowing amendment.
(Id. at 6.)
party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) if the pleading
is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever
is earlier.” Fed.R.Civ.P. 15(a)(1)(A), (B). Otherwise,
a party must seek the opposing party's written consent or
leave of court to amend a pleading. Fed.R.Civ.P. 15(a)(2).
Here, Plaintiff was required to seek leave to amend.
the court should give leave to amend freely when justice
requires, leave need not be granted where amendment:
“(1) prejudices the opposing party; (2) is sought in
bad faith; (3) produces an undue delay in litigation; or (4)
is futile.” AmerisourceBergen Corp. v. Dialysist
West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation
April 12, 2017, the court entered a scheduling order
providing that any amendment to a pleading or motion for
leave to amend should be filed and served on or before June
12, 2017. (ECF No. 30 at 2.) Plaintiff filed this motion for
leave to amend on June 27, 2017. (ECF No. 45.) Where a motion
for leave to amend is filed after entry of the Rule 16
scheduling order deadline, the movant cannot “appeal to
the liberal amendment procedures afforded by Rule 15.”
AmerisourceBergen, 465 F.3d at 952. Instead, the
movant must “satisfy the more stringent
‘good cause' showing required under Rule 16.”
Id. (emphasis original). Rule 16 expressly states
that “[a] schedule may be modified only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(4). “The district court is given broad discretion
in supervising the pretrial phase of litigation, and its
decisions regarding the preclusive effect of a pretrial order
… will not be disturbed unless they evidence a clear
abuse of discretion.” C.F. ex. rel. Farnan v.
Capistrano Unified School Dist., 654 F.3d 975, 984 (9th
Cir. 2011), cert. denied, 132 S.Ct. 1566 (2012).
court's evaluation of good cause is not
coextensive with an inquiry into the propriety of the
amendment … Rule 15.” Johnson v. Mammoth
Recreations, Inc., 975 F.3d 604, 609 (9th Cir. 1992)
(citation and quotation marks omitted) (emphasis added).
“Unlike Rule 15(a)'s liberal amendment policy
…, Rule 16(b)'s ‘good cause' standard
primarily considers the diligent of the party seeking
amendment.” Id. In other words,
“‘[t]he focus of the inquiry is upon the moving
party's reasons for seeking modification.'”
Farnan, 654 F.3d at 984 (quoting Johnson,
975 F.3d at 609). “[C]arelessness is not compatible
with a finding of diligence and offers no reason for a grant
of relief.” Johnson, 975 F.2d at 609.