United States District Court, D. Nevada
ORDER RE: ECF NO. 37
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
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
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
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.)
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.)
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.
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.
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).
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.
the court will turn to Defendants' argument that
amendment would be futile with respect to Counts I-III of the
to amend may be denied if the proposed amendment is futile or
would be subject to dismissal. Carrico v. City &
County of San ...