United States District Court, D. Nevada
ORDER (MOT AMD COMPLT - ECF, 14)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff's Motion for Leave to File First
Amended Complaint (ECF No. 14).to Amend. The court has
considered the motion and attached proposed amended
complaint, defendants' Opposition (ECF No. 15), and
plaintiff's Reply (ECF No. 16).
court entered a Discovery Plan and Scheduling Order (ECF No.
9) on August 31, 2017, which required the parties to make
their initial disclosures by September 13, 2017, and set an
October 13, 2017 deadline to file motions to amend the
pleadings or add parties. Counsel for plaintiff received
approximately 100 pages of defendants' initial
disclosures on September 13, 2017, and drafted a first
amended complaint based on information learned from the
documents. Plaintiff seeks leave to amend arguing Rule 15(a)
of the Federal Rules of Civil Procedure provides that leave
to amend “shall be freely given when justice so
requires.” The district court may deny leave to amend
only in certain circumstances. See Leadsinger, Inc. v.
BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
In this case none of these circumstances exist. The motion
was promptly filed; plaintiff has engaged in no bad faith and
has no dilatory motive; there have been no repeated failures
to cure deficiencies to the original complaint; there would
be no undue prejudice to the opposing parties; and amendment
would not be futile.
oppose the motion acknowledging that the motion to amend was
timely filed. Defendants also acknowledge that leave to amend
should be liberally granted. However, defendants argue that
plaintiff cannot provide or prove any set of facts that would
constitute a valid and sufficient claim for an equal
protection claim. Specifically, with respect to the claim
based on violation of her visiting privileges, prisoners are
not a suspect or protected class. It is well settled that
prisoners have no constitutional right while incarcerated to
contact visits or conjugal visits. In the absence of an
allegation of a violation of a fundamental right or the
existence of a suspect classification, prison officials need
only show that their policies bear a rational relation to a
legitimate penological interest to satisfy the Equal
Protection Clause. Here, plaintiff is not a suspect or
protected class as a prison visitor and does not allege a
violation of a fundamental right. Moreover, plaintiff admits
in her proposed amended complaint that Nevada Department of
Corrections Personnel “had reason to believe” she
“was attempting to introduce drugs into the
institution.” The court should therefore deny her
motion for leave to file a first amended complaint.
replies that her first amended complaint states a prima facie
cause of action for an equal protection claim. The fact that
she is not a member of a protected class for purposes of this
case does not bar her Fourteenth Amendment claim. The essence
of her claim is what the United States Supreme Court has
termed a “class of one” equal protection claim.
The ninth cause of action of her proposed first amended
complaint alleges plaintiff did nothing to violate her NDOC
visiting privileges, and that defendant still suspended her
visiting privileges indefinitely without legitimate cause.
Plaintiff alleges defendants treated her differently from
other similarly situated visitors who had done nothing to
violate their NDOC visiting privileges and were therefore
allowed to retain them. Accordingly, she states a prima facie
case for denial of her rights to equal protection under the
Fourteenth Amendment and the court should grant her leave to
initial matter, the court notes that the proposed amended
complaint does not “admit” that NDOC
“had reason to believe” plaintiff “was
attempting to introduce drugs into the institution” as
the defendants' opposition claims. To the contrary, the
proposed amended complaint states that an NDOC officer
stated he had reason to believe she was doing so and
plaintiff “emphatically denied the allegations and
consented to a cursory search of her person.” Amended
Complaint ¶ 18 &19. She alleges she was taken to was
taken to an area where she was ordered to remove all of her
clothing, remove her tampon and bend over and spread her
buttocks. Id. at ¶ 20-24. After this
humiliating procedure nothing illegal was discovered and she
was not provided with a replacement tampon which caused her
to bleed through her clothing. Id. at ¶ 25-26.
Defense counsel is admonished for misrepresenting the content
of plaintiff's proposed amended complaint to the court.
In the light most favorable to defense counsel, he may have
scanned rather than read the proposed amended complaint.
However, the court will simply not tolerate conduct of this
nature. To ensure no further misrepresentations will occur,
the court will direct that the lawyer who signed
defendants' opposition provide a copy of this order to
his supervisor, and file a certificate of compliance with the
court within 14 days.
to the merits of the motion to amend, in exercising its
discretion whether to grant leave to amend, the district
court is guided by Rule 15(a), which provides that
“leave shall be freely given when justice so
requires.” Allen v. City of Beverly Hills, 911
F.2d 367, 373 (9th Cir. 1990). “Generally, this
determination should be performed with all inferences in
favor of granting the motion.” Griggs v. Pace Am.
Group, Inc., 170 F.3d 877, 880 (9th Cir. 1999). Futility
alone can justify the denial of a motion for leave to amend.
Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.
2004). “However, denial on this ground is rare and
courts generally defer consideration of challenges to the
merits of a proposed amended pleading until after leave to
amend is granted and the amended pleading is filed.”
Clarke v. Upton, 703 F.Supp.2d 1037, 1043 (E.D. Cal.
2010) (citation omitted); see also Rutter Group
Prac. Guide Fed. Civ. Pro. Before Trial at § 8:1514.
Futility is “often more appropriately raised in a
motion to dismiss rather than in an opposition to a motion
for leave to amend.” Stearns v. Select Comfort
Retail Corp., 763 F.Supp.2d 1128, 1154 (N.D. Cal. 2010)
reviewed and considered the moving and responsive papers, the
court will grant the motion.
IT IS ORDERED that the Motion for Leave to
File First Amended Civil Rights Complaint Pursuant to 42
U.S.C. § 1983 (ECF No. 14) is GRANTED.
The plaintiff shall separately file and serve the proposed
amended complaint attached to the motion.
IS FURTHER ORDERED that counsel for the defendants
who signed the opposition to the motion shall provide a copy
of this order to his supervisor, and file a certificate of