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Dryden v. State

United States District Court, D. Nevada

August 21, 2019

BRYAN DRYDEN, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.

         Pro se 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.

         Procedural History

         This 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 screening. Id.

         After 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 including:

• Count I, alleging failure to protect against Defendant Osborn;
• 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 Neilson;
• 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.

         Thereafter, Plaintiff filed several motions, but it was not until June 19, 2019, that Plaintiff filed his Motion for Leave to File Fifth Amended Complaint.

         The Motion for Leave to Amend is Denied in Part ...


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