Opinion
Case No.: 2:11-cv-00250-GMN-CWH
03-29-2013
NELSON LLAVATA, Plaintiff, v. COLE MORROW; BRUCE BANNISTER, Defendants.
ORDER
Pending before the Court is the Report and Recommendation of the United States Magistrate Judge C.W. Hoffman, Jr. (ECF No. 75.) Plaintiff Nelson Llavata ("Plaintiff") filed an Objection. (ECF No. 79.) Defendants Cole Morrow and Bruce Bannister ("Defendants") filed a Response to Plaintiff's Objection (ECF No. 81) and Plaintiff filed a Reply (ECF No. 82). For the reasons discussed below, the Court will accept Judge Hoffman's Report and Recommendation to the extent that it is not inconsistent with this Order.
I. BACKGROUND
Plaintiff is a prisoner in the custody of the Nevada Department of Corrections (NDOC) and currently housed in the Northern Nevada Correctional Center. (Notice of Change of Address, ECF No. 29.) Plaintiff commenced this litigation on February 14, 2011, when he filed his Motion for Leave to Proceed in forma pauperis. (ECF No. 1.) Plaintiff's Complaint alleges that he was denied medical treatment in violation of his civil rights. (Compl. 4, ECF No. 6.) Plaintiff further alleges that Defendants violated his Fourteenth Amendment rights to Due Process and Equal Protection of the Law. (Id.)
Plaintiff was originally housed at Lovelock Correctional Center. (Am. Compl. ¶ 1, ECF No. 7.) However, on November 7, 2011, Plaintiff filed a Notice of Change of Address that notified the Court that he had been relocated to the Northern Nevada Correctional Center in Carson City, Nevada. (Notice of Change of Address, ECF No. 29.)
Thereafter, the Court granted Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and instructed Plaintiff to file an amended complaint more fully articulating his Eighth Amendment claim for deliberate indifference to his medical needs. (Order, ECF No. 5.) On May 4, 2011, Plaintiff filed his First Amended Complaint. (First Am. Compl., ECF No. 7.) Subsequently, on May 31, 2011, the Court entered its screening order finding that Plaintiff had pled facts sufficient to support his Eighth Amendment claim for deliberate indifference to his medical needs. (Screening Order, ECF No. 8.)
Plaintiff subsequently filed a Motion to Amend his Complaint and file a Second Amended Complaint. (Mot. to Am., ECF No. 54; Proposed Second Am. Compl., ECF No. 54-1.) Specifically, Plaintiff sought to replace Defendant John Doe Number One with Romeo Aranas. In their opposition to Plaintiff's motion, Defendants did not object to Plaintiff's request to include Romeo Aranas as a Defendant. However, Defendants did object to Plaintiff's filing of his Second Amended Complaint because it includes other changes that were not properly identified. In his Reply, Plaintiff conceded that his Second Amended Complaint should not be filed because it includes other changes not clearly identified. Thus, in his Reply, Plaintiff limited his request to replacing John Doe Number One with Romeo Aranas.
On October 22, 2012, Magistrate Judge Hoffman issued a Report and Recommendation that recommended Plaintiffs Motion for Leave to Amend Complaint be "granted subject to the modification that Plaintiff be given leave to amend his First Amended Complaint to replace Defendant John Doe Number One with Romeo Aranas in the First Amended Complaint . . . , but not given leave to file the Proposed Second Amended Complaint." (R&R 3:9-13, ECF No. 75.) Specifically, the Report and Recommendation recommended that:
Plaintiff's First Amended Complaint be amended to replace John Doe with Romeo Aranas as follows: (1) once on page 2 at ¶¶ 4 and 5, (2) twice on page 4 at ¶ 2, (3) once on page 5 at ¶ 1, (4) once on page 7 at ¶¶ 1 and 2, (5) once on page 8 at ¶ 1, (6) once on page 9 at ¶ 1, and twice on page 10 at ¶ 1.(R&R 3:3-6, ECF No. 75.)
II. LEGAL STANDARD
A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. LCR IB 3-2. Upon the filing of such objections, the district court must make a de novo determination of those portions of the Report to which objections are made. Id. The district court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); D. Nev. IB 3-2(b). However, the district court need not conduct a hearing to satisfy the statutory requirement that the district court make a "de novo determination." United States v. Raddatz,447 U.S. 667, 674 (1980) (observing that there is "nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required 'determination'"). Rather, a hearing is required only when the district court "reject[s] a magistrate judge's credibility findings made after a hearing on a motion to suppress." United States v. Ridgway,300 F.3d 1153, 1154 (9th Cir. 2002).
Before trial, and after previously amending its pleading once as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment . . . ." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is denied only when it is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
III. DISCUSSION
On November 14, 2012, Plaintiff filed an objection to the Report and Recommendation. (ECF No. 79.) In his objection, Plaintiff objects to the specific locations in his Amended Complaint that the Report and Recommendation recommended Dr. Aranas be inserted. (Id.) Defendants filed a Response to Plaintiff's Objection in which Defendants argue that Plaintiff failed to provide the Court with a basis for why his opinion differs from that of the Report and Recommendation. (ECF No. 81.) Plaintiff filed a Reply explaining that he only objects to his being required to include Romeo Aranas "once page 4 at ¶ 3; once on page 5 at line 3; twice on page 7 at ¶¶ 1 and 2; and once on page 8 at line 1."
The Court notes that these substitutions, about which Plaintiff is objecting, were not included in the Report and Recommendation. (See R&R 3:3-6, ECF No. 75.)
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Having read the Report and Recommendation and the Objection and briefing by the parties, the Court finds no reason to disagree with the Report and Recommendation. Thus, the Court concludes that Plaintiff shall amend his First Amended Complaint (ECF No. 7), attached to this Order as Exhibit 1, to substitute Romeo Aranas for Dr. John Doe in the following locations:
1) once each on page 2 at ¶¶ 4 and 5;
2) twice on page 4 at ¶ 2;
3) once on page 5 at ¶ 1;
4) once each on page 7 at ¶¶ 1 and 2;
5) once on page 8 at ¶ 1;
6) once on page 9 at ¶ 1 which is currently a blank; and,
7) twice on page 10 at ¶ 1.
IV. CONCLUSION
IT IS HEREBY ORDERED that Magistrate Judge Hoffman's Report and Recommendation (ECF No. 75) be ACCEPTED, in full, to the extent that it is not inconsistent with this Order.
IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Amend Complaint (ECF No. 54) is GRANTED in part. Plaintiff is permitted to replace Defendant John Doe Number One with Romeo Aranas in his First Amended Complaint as provided in this Order.
IT IS FURTHER ORDERED that Plaintiff shall file his Amended Complaint as a "Second Amended" Complaint by Wednesday, May 1, 2013. Plaintiff is not given leave to file his "Proposed Second Amended Complaint" (ECF No. 54-1) that he filed with his Motion for Leave to Amend Complaint.
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Gloria M. Navarro
United States District Judge