Opinion
No. 2:13-cv-0726 JAM DAD P
06-09-2015
KRISTIN HARDY, Plaintiff, v. C. DAVIS, et al., Defendants.
ORDER
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 11, 2015, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the findings and recommendations and Defendants responded.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis, but the Court does not adopt the findings and recommendations to the extent they deny Plaintiff leave to amend his claims against Defendant Davis. A court should freely grant leave to amend. Fed. R. Civ. Pro. 15(a)(2). A court "is generally required to grant the plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile." Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). Amendment is not futile if the plaintiff could "cure the defect requiring dismissal 'without contradicting any of the allegations of [the] original complaint.'" Plascencia v. Lending 1st Mortgage, 583 F. Supp. 2d 1090, 1095 (N.D. Cal. 2008) (quoting Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990)) (alteration in original).
Here, the Court agrees with the magistrate judge that Plaintiff has not pled a causal link between Defendant Davis's actions and the strip search. See F&R at 6, 8. But nothing in the complaint contradicts such a link, and Plaintiff has had no previous opportunity to amend. The Court therefore grants the motion to dismiss as to Defendant Davis, but allows Plaintiff leave to amend those allegations.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed February 11, 2015 are adopted;
2. Defendants' March 28, 2014 motion to dismiss (ECF No. 26) is granted with leave to amend as to all of Plaintiff's claims against Defendant Davis, and denied as to Plaintiff's Fourth Amendment claim against Defendants Morris and Zahniser;
3. If Plaintiff chooses to file an amended complaint as to the allegations against Defendant Davis, he must do so within twenty-one days from the date of this order;
4. Defendants Morris and Zahniser are directed to file an answer within twenty-one days from the date of the filing of Plaintiff's amended complaint, or the expiration of the twenty-one days allotted to file such amended complaint mentioned above in paragraph 3—whichever is sooner; and
5. Plaintiff's June 2, 2014 motion to amend his complaint to add new claims or theories against Defendant Davis (ECF No. 31) is denied. DATED: June 9, 2015
/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE