United States District Court, D. Nevada
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
plaintiff Bryan Dryden is an inmate at High Desert State
Prison (“HDSP”) who filed a Motion for Leave to
File Fifth Amended Complaint (ECF No. 88) on June 19, 2019.
Plaintiff also filed a document titled 5th Amended Civil
Rights Complaint (ECF No. 91), in which he hand wrote
“Jury Trial Demanded” and explained that he
failed to mark his cover page correctly and forgot to name
all Defendants on ECF No. 88-1. Defendant filed an Opposition
to Plaintiff's Motion on July 3, 2019 (ECF No. 94). I
grant Plaintiff's Motion to the extent it restates, with
some additional facts, Counts I through V that were
previously asserted in Plaintiff's Fourth Amended
Complaint and allowed to proceed pursuant to the Court's
Orders entered on May 22 and June 15, 2018 (EFC Nos. 34 and
38). Defendants are not prejudiced by these amendments as
they result in no undue delay. After screening
Plaintiff's proposed Fifth Amended Complaint, the Court
finds Counts VI, VII and VIII fail to state claims upon which
relief may be granted. Given that two of these three claims
were previously asserted by Plaintiff, and Plaintiff has had
ample time to amend or add these claims prior to his instant
filing, and given that this matter is now more than three
years old, the Court further finds that giving Plaintiff an
opportunity to once again amend his Complaint to add these
Counts (VI, VII, and VIII) would cause undue delay and
prejudice to Defendants.
case commenced in federal court when then-Defendants removed
Plaintiff's state court filed “Amended Civil Rights
Complaint” filed on April 15, 2016 in the Eighth
Judicial District Court. Since that time, Plaintiff has filed
an Amended Complaint, a Second Amended Complaint, a Third
Amended Complaint, and a Fourth Amended Complaint (EFC Nos.
19, 25, 27 and 29). As the Court explained in his May 22,
2018 order, the delay, if any, with respect to review of
these amendments was due to the Court's docket, and not
the fault of Plaintiff. ECF No. 34. Whether the Court
reviewed Plaintiff's Second, Third or Fourth Amended
Complaint, the Court would spend the same amount of time
engaged in the activity and, as such, Defendants would suffer
no undue delay or prejudice as the result of the Court's
consideration and then reconsideration of Plaintiff's
Fourth Amended Complaint (ECF Nos. 34 and 38), the Court
allowed Plaintiff to proceed on six causes of action
• Count I, alleging failure to protect against Defendant
• Count II, alleging negligence or gross negligence
against Defendant Osborn;
• Count III, alleging intentional infliction of
emotional distress against Defendant Osborn;
• Count IV, alleging excessive force against Defendant
• Count V, alleging assault and battery against
Defendant Neilson; and
• Count VI, alleging intentional infliction of emotional
distress against Defendant Neilson.
ECF No. 38 at 2:8-14, filed on June 15, 2018. The Court was
clear that all other causes or claims asserted by Plaintiff
were dismissed. Id. at 2:23-24. The Court further
ordered a brief stay to allow the parties to engage in the
Inmate Early Mediation Program, which was unsuccessful.
Plaintiff filed several motions, but it was not until June
19, 2019, that Plaintiff filed his Motion for Leave to File
Fifth Amended Complaint.
Motion for Leave to Amend is Denied in Part ...