United States District Court, D. Nevada
CLIFFORD W. MILLER, Plaintiff,
ROMEO ARANAS and the NEVADA DEPARTMENT OF CORRECTIONS, Defendants.
ORDER RE: ECF NO. 27
William G. Cobb, United States Magistrate Judge.
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.)
reasons set forth below, Plaintiff's motion is granted.
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.)
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.
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.
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.
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).
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).
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.
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.
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), ...