United States District Court, D. Nevada
KEITH A. WARREN, Plaintiff,
NEVADA DEPARTMENT OF CORRECTIONS, et al, Defendants.
ORDER RE: ECF NO. 32
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiffs Motion to File Second Amended
Complaint (ECF No. 32), to which Defendants Powers and
Wickham have filed a "non-opposition." (ECF No.
court's screening order found that Plaintiffs First
Amended Complaint stated colorable Eighth Amendment
"failure to protect" claims and First Amendment
retaliation claims against Defendants Thomas, Powers and
Wickham. (ECF No. 11 at 4-6.) Plaintiffs "Federal
Statutory Claims" were dismissed without leave to amend.
(Id. at 6.) Plaintiff s "State law Claims"
were largely dismissed except for certain colorable claims
premised upon Article 1, Section 9 of the Nevada
Constitution, which section ".... provides free speech
protections that are coextensive with the First Amendment to
the United States Constitution." (Id. at 7;
citation omitted.) Thus, Plaintiffs state constitutional law
"retaliation claim" was allowed to proceed against
the same three Defendants (Thomas, Powers and Wickham).
motion to amend states his proposed Second Amended Complaint
"would cure the defects within his complaint, clarify
defendants and to make his [Second Amended] complaint more
factually accurate and concise for the court." Plaintiff
represents there would be "no prejudice to Defendants
..." (ECF No. 32 at 2-3.)
Defendants Powers and Wickham have expressed a non-opposition
to Plaintiffs motion to amend, the court notes Plaintiffs
proposed Second Amended Complaint seeks to add eleven (11)
new defendants. While it appears the gravamen of
Plaintiffs claims in his First Amended Complaint (which if
they were allowed to proceed) are similar to Counts I and II
of the proposed Second Amended Complaint, Count III appears
to assert a seemingly new claim of failing to investigate the
assault allegedly perpetrated against him. (ECF No. 32 at pp.
17-18.) Because of the proposed addition of eleven (11) new
defendants and possibly one (1) new cause of action, it
further appears the proposed Second Amended Complaint should
be placed in line to be screened.
leave to amend is to be freely given under Federal Rule of
Civil Procedure 15(a)(2), the court need not give leave to
amend where doing so is, among other things, futile or the
amended complaint would be subject to dismissal. See
Amerisource Bergen Corp. v. Dialysist West, Inc., 465
F.3d 946, 951 (9th Cir. 2006); see also Carrico v. City
& County of San Francisco, 656 F.3d 1002, 1008 (9th
Cir. 2011). As such, the non-moving party, as well as the
court, should review the proposed amended complaint to
determine whether any portion of the proposed amended
complaint would be futile. The standard for futility is
whether the proposed amended complaint states a claim upon
which relief may be granted, which is the same standard the
court employs in screening prisoner complaints under the
Prison Litigation Reform Act, 28 U.S.C. § 1915A, and the
same standard that is utilized in a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).
case law interpreting Rule 15 allows Defendants to oppose a
motion for leave to amend if the proposed amendment fails to
state a claim upon which relief may be granted.
court will review the motion for leave to amend in due course
and will screen the proposed amended complaint under 28
U.S.C. § 1915A. However, absent compelling
circumstances, any subsequent motion to dismiss the proposed
Second Amended Complaint (if leave is granted to file it) for
failure to state a claim filed by Defendants will not be well
received inasmuch as the Defendants had an opportunity to
assert such arguments in response to Plaintiffs motion to
amend and have apparently elected not to do so. The court
does not wish to engage in a repetitive analysis. As such, if
Defendants wish to assert an argument that the proposed
second amended complaint fails to state a claim upon which
relief may be granted, they will have fourteen (14)
days from the date of this Order to do so.
IS SO ORDERED
The screening order permitted
Plaintiffs causes of action to proceed against Defendants
Powers and Wickham, who have appeared and answered (ECF Nos.
20 & 28). The other Defendant against whom Plaintiffs
claims were allowed to proceed, Chandra Thomas, has not been
served. (ECF Nos. 20, 23 & 25.)
 Baca, Baker, Byrne, Baza, Del Porto,
Foster, Kelly, Mears, Ramirez, Tristan and Vidari. (ECF No.