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Holden v. State ex rel. Department of Corrections

United States District Court, D. Nevada

September 18, 2017

JIM BASS HOLDEN, Plaintiff,
v.
STATE OF NEVADA, ex. rel., NEVADA DEPARTMENT OF CORRECTIONS, et al. Defendants.

          ORDER RE: ECF NO. 37

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         Before the court is Plaintiff's Amended Motion for Leave to File 2nd Amended Complaint. (ECF No. 37.) Defendants filed a response (ECF No. 46), and Plaintiff filed a reply (ECF No. 48). For the reasons stated below, Plaintiff's motion is granted.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding with this action pursuant to 42 U.S.C. § 1983. (Pl.'s First Am. Compl., ECF No. 3.) While he filed his complaint and FAC pro se, he is now represented by counsel. (See ECF No. 28.) The events giving rise to this action took place while Plaintiff was housed at High Desert State Prison (HDSP), Lovelock Correctional Center (LCC), and Northern Nevada Correctional Center (NNCC).

         On screening, Plaintiff was permitted to proceed with claims under the Eighth Amendment and Nevada Constitution for deliberate indifference to his health, safety and serious medical needs based on allegations: that Defendants instituted policies which deprived him of protection from the sun while he resided in HDSP's administrative segregation (ad-seg) unit; and, when he attempted to seek medical treatment for his changing moles, freckles and skin lesions for four years, and even when prison officials knew some of his lesions were cancerous, they refused to look at other lesions and order biopsies or properly treat his condition. (Screening Order, ECF No. 4.)

         Plaintiff was allowed to proceed with these claims in the FAC against the following defendants: James Greg Cox, E.K. McDaniel, Dr. Robert Bannister, Pamela Del Porto, Chuck Schardin, Dwight Neven, Timothy Filson, Dr. Ted Hanf, Nurse Practitioner Fey, Dr. James Holmes, Dr. Romeo Aranas, and Dr. William Donnelly. (Id.) Nurse Practitioner Fey was subsequently dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m) on April 24, 2007. (ECF No. 41.) Plaintiff served Dr. Holmes via publication. (See ECF Nos. 30, 31, 33, 44.)

         Plaintiff now seeks leave to file a Second Amended Complaint (SAC). In their opposition to Plaintiff's motion, Defendants assert two arguments for denying Plaintiff's motion: (1) Plaintiff has already amended his complaint once as a matter of course; and (2) amendment would be futile, at least as to Counts I-III, because Plaintiff fails to allege that the defendants named in those counts knew of and disregarded an excessive risk to inmate health or safety through the alleged policies.

         II. LEGAL STANDARD

         “A 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 freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave to amend need not be given where amendment: “(1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Amerisource Bergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation omitted).

         III. DISCUSSION

         First, insofar as Defendants' argue that the motion should be denied because Plaintiff has already amended once as a matter of course, the court finds that argument to be meritless. Federal Rule of Civil Procedure 15 specifically allows a party to amend a pleading once as a matter of course within twenty-one days after service, or within twenty-one days of the service of a responsive pleading or motion, and otherwise, by obtaining consent of the opposing party or with the court's leave. Fed.R.Civ.P. 15(a) (emphasis added). “Rule 15 provides different ways to amend a complaint, and these ways are not mutually exclusive.” Ramirez v. County of San Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015). Plaintiff is within the confines of Rule 15 in seeking to amend with the court's leave even though he already amended once as a matter of course.

         Second, the court will turn to Defendants' argument that amendment would be futile with respect to Counts I-III of the SAC.

         Leave to amend may be denied if the proposed amendment is futile or would be subject to dismissal. Carrico v. City & County of San ...


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