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Miller v. Aranas

United States District Court, D. Nevada

November 13, 2019

CLIFFORD W. MILLER, Plaintiff,
v.
ROMEO ARANAS and the NEVADA DEPARTMENT OF CORRECTIONS, Defendants.

          ORDER RE: ECF NO. 27

          William G. Cobb, United States Magistrate Judge.

         Before the court is Plaintiff's Motion for Leave to File Second Amended Complaint (SAC), declaration of counsel, and proposed SAC. (ECF Nos. 27, 27-1, 27-2.) Defendant Romeo Aranas filed a response. (ECF Nos. 31, 31-1, 31-2.) Plaintiff filed a reply. (ECF No. 32.)

         For the reasons set forth below, Plaintiff's motion is granted.

         I. BACKGROUND

         Plaintiff filed his original complaint and application for leave to proceed in forma pauperis (IFP) on February 2, 2017. (ECF Nos. 1, 1-1.) He was proceeding pro se. The court screened the complaint and dismissed Counts I and II with leave to amend, and dismissed Count III with prejudice. (ECF No. 3.) Plaintiff filed his amended complaint on February 27, 2018. (ECF No. 5.) Plaintiff was allowed to proceed with an Eighth Amendment deliberate indifference to serious medical needs claim against John Does III and IV based on allegations that he has a vision problem, and that these physicians believed surgery might help but did not ask the utilization review panel (URP) to consider it. He was also allowed to proceed with an Eighth Amendment claim against Dr. Aranas based on allegations that Dr. Aranas was aware of a recommendation for Plaintiff to have a consultation with another doctor concerning his eye problem, but did not approve the consultation. All other claims were dismissed. (ECF No. 6.)

         The parties participated in an early mediation conference, but attempts to settle the case were unsuccessful. (See ECF No. 14.) Plaintiff's IFP application was granted, and the court ordered the issuance of a summons and service on Dr. Aranas. (ECF No. 16.) The Attorney General's Office accepted service for Dr. Aranas on July 24, 2019. (ECF No. 19.) Dr. Aranas filed his answer on August 26, 2019. (ECF No. 24.)

         Terri Keyser-Cooper, Esq., entered an appearance on behalf of Plaintiff and filed this motion for leave to file the SAC on the same date. (ECF Nos. 26, 27.) The proposed SAC seeks to add an Americans with Disabilities Act (ADA) claim against the Nevada Department of Corrections (NDOC), revises the allegations of the Eighth Amendment claim against Dr. Aranas, and dismisses all other defendants and claims.

         Dr. Aranas argues that leave to amend should not be given with respect to the ADA claim against NDOC because the ADA prohibits discrimination based on disability, but does not apply to inadequate treatment for disability. Dr. Aranas does not otherwise oppose the motion for leave to amend.

         II. DISCUSSION

         “A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.R.Civ.P. 15(a)(1)(A), (B). Otherwise, a party must seek the opposing party's written consent or leave of court to amend a pleading. Fed.R.Civ.P. 15(a)(2).

         “The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave to amend need not be given where amendment: “(1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Amerisource Bergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation omitted).

         The court finds that leave to amend is proper under Federal Rule of Civil Procedure 15(a)(2); however, the court will now review the proposed SAC to determine whether amendment would be futile in any regard.

         Preliminarily, the court notes that Dr. Aranas does not oppose Plaintiff's motion for leave to amend insofar as the Eighth Amendment claim against him is concerned; therefore, the court will allow the amendment in that regard. The court will now turn to whether leave should be given to assert the ADA claim against NDOC.

         "Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001). "To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), ...


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