United States District Court, D. Nevada
ORDER MOTION TO AMEND [ECF NO. 29]
FERENBACH, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Marcos Pasaye's Motion for Leave
of Court to File First Amended Complaint, Extended Complaint,
and Motion to Order Service. (ECF No. 29). For the reasons
discussed below, Plaintiff's motion is granted.
was an inmate at High Desert State Prison when this case
began. (ECF No. 1 at 3, ECF No. 1-1 at 1). Plaintiff was
granted in forma pauperis status in this case. (ECF
No. 18). Plaintiff was paroled and released from prison on
April 1, 2019 (ECF No. 26; ECF No. 27 at 1), one week before
he filed his motion to amend his complaint (ECF No. 29).
originally filed a complaint against Defendants the State of
Nevada, the Nevada Department of Corrections
(“NDOC”), James Dzurenda, Brian Williams,
Jennifer Nash, and Calderin. (ECF No. 7 at 1-2). The Court
dismissed the State of Nevada and NDOC from the case. (ECF
No. 6 at 9). The Court allowed the claims for First Amendment
free exercise of religion, RLUIPA violation, Fourteenth
Amendment equal protection, and First Amendment retaliation
against Dzurenda, Williams, Nash, and Calderin to proceed.
(ECF No. 4-7, 9).
proposed amended complaint contains the four claims that the
Court previously allowed to proceed, though the amended
complaint adds in facts and new Defendants. (ECF No. 29-1 at
6-17). The amended complaint adds Defendants Brian Sandoval
(Governor of Nevada), Adam Laxalt (Attorney General of
Nevada), Steve Sisolak (Governor of Nevada), Aaron Ford
(Attorney General of Nevada), Richard Snyder (Chairman of
NDOC's Religious Review Team), and K Thomas (second level
grievance responder at NDOC). (Id. at 3-4).
Plaintiff asserts that these new Defendants were involved in
creating and enforcing the discriminatory religious policies
at issue in the case. (Id. at 3-17). The amended
complaint also adds state law claims for negligent training
supervising, and controlling; negligent infliction of
emotional distress; and intentional infliction of emotional
distress against Defendants, based on the same conduct at
issue in Plaintiff's federal law claims. (Id. at
18-22). The proposed amended complaint includes an appendix
of exhibits. (ECF No. 29-2).
asserts that his proposed amended complaint restructures his
claims for ease of reading, adds important facts, and adjusts
his request for relief. (ECF No. 29 at 2). Defendants did not
oppose the motion for leave to amend.
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “Five factors
are taken into account to assess the propriety of a motion
for leave to amend: bad faith, undue delay, prejudice to the
opposing party, futility of amendment, and whether the
plaintiff has previously amended the complaint.”
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
2004). In addition, under LR 7-2(d), “[t]he failure of
an opposing party to file points and authorities in response
to any motion…constitutes a consent to the granting of
the motion.” Because Defendants do not oppose
Plaintiff's motion, Defendants have consented to the
Court granting the motion. The Court also finds grounds to
grant Plaintiff leave to amend his complaint. There is no
apparent bad faith or undue delay in the motion for leave to
amend. The amendments do not appear to prejudice Defendants.
Plaintiff's amendments do not appear to be futile, as
Plaintiff has provided facially plausible grounds to add the
new Defendants and claims to his complaint. This is
Plaintiff's first motion for leave to amend the
and for good cause shown, IT IS ORDERED that Plaintiff's
Motion for Leave of Court to File First Amended Complaint,
Extended Complaint, and Motion to Order Service (ECF No. 29)
is GRANTED. The Clerk of Court will file the First Amended
Complaint and Appendix. (ECF Nos. 29-1, 29-2).
must be perfected within ninety (90) days from the date of
this order pursuant to Fed.R.Civ.P. 4(m).
21 days of the date of entry of this order, the Attorney
General's Office shall file a notice advising the Court
and Plaintiff of: (a) the names of the defendants for whom it
accepts service; (b) the names of the defendants for whom it
does not accept service, and (c) the names of the defendants
for whom it is filing the last-known-address information
under seal. As to any of the named defendants for whom the
Attorney General's Office cannot accept service, the
Office shall file ex parte under seal the last known
address(es) of those defendant(s) for whom it has such
information. If the last known address of the defendant(s) is
a post office box, the Attorney General's Office shall
attempt to obtain and provide the last known physical
service cannot be accepted for any of the named defendant(s),
Plaintiff shall file a motion identifying the unserved
defendant(s), requesting issuance of a summons, and
specifying a full name and address for the defendant(s). For
the defendant(s) as to which the Attorney General has not
provided last-known-address information, Plaintiff shall
provide the full name and address for the defendant(s).
Attorney General accepts service of process for any named
defendant(s), such defendant(s) shall file and serve an
answer or other response to the complaint ...