Opinion
CV-18-01598-PHX-GMS (JZB)
10-06-2021
Jason Darnell Gregory, Plaintiff, v. State of Arizona, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Before the Court is Plaintiff's Motion to Amend his Fourth Amended Complaint. (Doc. 123; see Doc. 124 [proposed Fifth Amended Complaint].) For the following reasons, the Court recommends that Plaintiff's Motion be denied.
I. Background.
On May 13, 2021, the Court screened the Fourth Amended Complaint (doc. 105) and ordered Defendants Garcia and Peji to answer Count One therein. (Doc. 104.) In Count One, as summarized by the Court:
Plaintiff alleges Defendants Garcia and Peji acted with deliberate indifference to his health and safety in violation of the Eighth Amendment (Doc. 93 at 9.) Specifically, Plaintiff asserts that Defendants Garcia and Peji violated his Eighth Amendment rights when Defendant Garcia opened his cell and failed to escort him in violation of ADC policy, and Defendant Peji locked him in the shower with another inmate after a fight began between Plaintiff and the other inmate.(Id. at 5.) In its May 13, 2021 Order, the Court summarized the procedural history leading up to the filing of the Fourth Amended Complaint as follows:
On May 25, 2018, Plaintiff initiated this action by filing a civil rights complaint (Complaint) in this Court. (Doc. 1.) On August 29, 2018, the Court screened and dismissed Plaintiff's Complaint for failure to state a claim. (Doc. 12.) On September 18, 2018, Plaintiff filed his First Amended Complaint (FAC). (Doc. 15.) On October 9, 2018, Plaintiff filed a Motion to Amend his FAC. (Doc. 16.) On November 8, 2018, Plaintiff filed his Second Amended Complaint (SAC). (Doc. 17.) On December 17, 2018, the Court granted Plaintiff's Motion to Amend (doc. 16), screened Plaintiff's SAC (doc. 17), and dismissed Plaintiff's SAC for failure to state a claim. (Doc. 18.)
On January 18, 2019, Plaintiff filed his Third Amended Complaint (TAC). (Doc. 20.) On January 29, 2019, Plaintiff filed an amended version of his TAC. (Doc. 24.) On May 3, 2019, the Court screened Plaintiff's amended TAC (doc. 24) and directed Defendant Laos to answer the relevant claims against him therein. (Doc. 28.)
On January 7, 2020, after numerous failures to serve or obtain an address to serve Defendant Laos, the Court issued an Order dismissing Defendant Laos and this action. (Doc. 63.) On appeal, Plaintiff asserted that he had learned the identity of the defendant control room officer, who was not Defendant Laos. (See Doc. 75.) On December 4, 2020, the Ninth Circuit Court of Appeal's issued a Mandate, reversing the dismissal of this action and remanding for further proceedings. (Doc. 76.)
On December 17, 2020, the Court issued an order directing as follows:
The Clerk of Court must send Plaintiff a service packet including the Third Amended Complaint (doc. 24), USM-285 forms, and both summons and request for waiver forms for the Defendant Control Room Officer. . . .
Plaintiff must (1) complete and return the service packet with the proper identity and address of Defendant Control Room Officer to the Clerk of Court and, if necessary, (2) a motion to substitute the actual name of “Defendant Control Room Officer.” The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.(Doc. 79 at 1-2.)
On January 4, 2021, Plaintiff concurrently filed/lodged six documents: three
“Motions to Amend” (Docs. 82, 84, 86), and three “Lodged proposed Amended Pleadings” (docs. 83, 85, 87). On January 6, 2021, Plaintiff returned the service packet sent to him, listing Maria Peji as the Defendant Control Room Officer to be served. (Doc. 81.) On January 11, 2021, the Court issued an Order denying Plaintiff's Motions to Amend (Docs. 82, 84, 86) for failing to comply with LRCiv 15.1(a), but granting one of Plaintiff's motions to amend to substitute Peji as Defendant Control Room Officer in place of Defendant Laos (Doc. 84), directed the Clerk to forward a service packet for Defendant Peji to the U.S.M.S. for service in accordance with the Court's December 17, 2020 Order (Doc. 79), and granted Plaintiff leave to file a renewed motion to amend his complaint, along with a proposed amended complaint as required under Federal and Local Rules. (Doc. 88.) On January 14, 2021, Defendant Peji waived service. (Doc. 94.)
On January 25, 2021, Plaintiff filed his Motion to Amend his TAC (doc. 92) and lodged a proposed Fourth Amended Complaint (lodged at doc. 93). On March 15, 2021, Defendant Peji filed an Answer to Plaintiff's TAC (doc. 24). (Doc. 95.)(Doc. 104 at 1-3.)
On May 13, 2021, the Court screened the proposed Fourth Amended Complaint and directed Defendants Peji and Garcia to answer Count One, discussed above. (Id. at 9-11.) On May 27, 2021, Defendant Peji answered the Fourth Amended Complaint. (Doc. 108.) On July 2, 2021, Defendant Garcia joined Defendant Peji's Answer. (Doc. 111.) On August 30, 2021, Plaintiff filed the present Motion to Amend his F ourth Amended Complaint (doc. 123) and lodged a proposed Fifth Amended Complaint (doc. 124).
II. Legal Standard.
A plaintiff who has previously amended his complaint may amend further only with the defendants' written consent or the Court's leave. Fed.R.Civ.P. 15(a)(2). A plaintiff moving for leave to amend must state his grounds for such “‘with particularity.'” Waters v. Weyerhaeuser Mortg. Co., 582 F.2d 503, 507 (9th Cir. 1978) (quoting Fed.R.Civ.P. 7(b)); Peterson v. California, No. 1:10-cv-01132-SMS, 2011 WL 3875622, at *2 (E.D. Cal. Sept. 1, 2011). If a plaintiff fails to do so, the Court may summarily deny his motion for leave to amend as procedurally improper. U.S. Care, Inc. v. Pioneer Life Ins. Co. of Illinois, 244 F.Supp.2d 1057, 1065 (C.D. Cal. 2002) (“[A motion to amend]-without any indication of the particular grounds on which the amendment is sought-does not constitute a motion within the contemplation of Rule 15(a).”); Peterson, 2011 WL 3875622, at *2 (“Merely requesting leave to amend without indicating the grounds for the amendment, as Plaintiff does here, does not constitute a motion within the requirements of F.R.Civ.P. 15(a).”).
To determine whether leave should be granted, the Court considers the following five factors: “bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” Ecological Rights Found. v. Pacific Gas and Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (citation omitted). “Although a district court ‘should freely give leave [to amend] when justice so requires,' Fed.R.Civ.P. 15(a)(2), the court's discretion to deny such leave is ‘particularly broad' where the plaintiff has previously amended its complaint.” Id. (citation omitted).
III. Analysis.
As an initial matter, Plaintiff's Motion is procedurally deficient and therefore subject to summary denial for lack of any stated reasons for why leave to amend should be granted. Below is the entirety of Plaintiff's Motion:
The plaintiff has put together an Amended Complaint in time to meet the deadline set by the court that was listed on the Sc[h]eduling Order. The order also directed me to file a motion for leave to Amend before August 25th which is the deadline set for the 2 documents. That said as justifiable relief please grant permission for me to file an Amended Complaint in the above case # adjacent to this motion.(Doc. 123 at 1.)
Nevertheless, the Court will deny leave to amend because amendment this far into the case-which has been pending since May 2018 and which is now at the summary judgment stage, see doc. 139-would cause undue delay and prejudice to Defendants. Additionally, the Court has previously granted Plaintiff leave to amend on three occasions, which weighs heavily against granting further leave to amend. (Docs. 12, 18, 104.) Lastly, granting leave to amend would be futile since none of the new claims asserted in the five-count proposed Fifth Amendment Complaint would pass screening, as explained below.
As stated by the Court in its May 13, 2021 Screening Order:
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other “more likely explanations” for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).(Doc. 104 at 3-4.)
In Count One of the proposed Fifth Amended Complaint, Plaintiff reasserts the ongoing Eighth Amendment failure-to-protect claims against Defendants Peji and Garcia. (Doc. 124 at 4.)
In Count Two, Plaintiff alleges that, in his “opinion,” Defendant Peji committed perjury when she allegedly stated she was not familiar with the administrative protocols relevant to the failure-to-protect claim. (Doc. 124 at 5.) Plaintiff fails to present any evidence or plausible allegation that Defendant Peji's alleged statements were “perjurious.” Just because Plaintiff is not satisfied with those statements does not render them “perjurious.”
In Count Three, Plaintiff raises the same failure-to-train claim against Defendant Thompson that he raised in the Fourth Amended Complaint, which the Court dismissed upon screening. (Doc. 124 at 6; see Doc. 104 at 8.) In dismissing the claim, the Court stated, “The mere fact that Plaintiff alleges Defendant Peji failed to follow ADC policy does not ipso facto demonstrate a failure to train or supervise by Defendant Thompson.” (Doc. 104 at 8.) Consistent with that reasoning, Plaintiff fails to state the same failure-to-train claim against Defendant Thompson here.
In Count Four, Plaintiff raises a new “obstruction of justice” claim against the U.S. Marshal Service and an “unknown ADOC representative.” (Doc. 124 at 1-2, 7.) Plaintiff alleges the “US Marshal[] and DOC rep obstructed justice when they with[h]eld evidence and my case was dismissed,” referring to the Court's dismissal of his case on January 7, 2020 for his failure to timely serve Defendant Laos-the sole named defendant at that time. (Doc. 63.) Plaintiff's alleged injury was that he “was depressed when the case was dismissed.” (Doc. 124 at 7.) Plaintiff does not allege what evidence was wrongfully withheld, nor does he allege any cognizable injury that has not already been remedied. As previously noted, the Court of Appeals vacated the dismissal order and remanded to the Court to allow Plaintiff to serve the proper defendant(s) (doc. 76)-Defendants Peji and Garcia-which he has since done.
Finally, in Count Five, Plaintiff raises a new “conspiracy' claim against “20+ officers” that allegedly observed Defendants Peji and Garcia committing the acts alleged in Count One. (Doc. 124 at 7.) Plaintiff does not name these other officers, nor plausibly allege facts to support that any other officers conspired with Defendants Peji and Garcia, and therefore fails to state a claim.
IV. Conclusion.
The presence of the above factors-undue delay, prejudice to Defendants, futility of amendment, and numerous amendments previously allowed-in this case weighs sharply against granting leave to amend here. Ecological Rights Found., 713 F.3d at 520. The Court therefore recommends denying Plaintiff's Motion. Pursuant to the Scheduling Order, no further motions to amend should be entertained. (Doc. 112 at 1.) Accordingly, IT IS RECOMMENDED that Plaintiff's Motion to Amend his Fourth Amended Complaint (doc. 123) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.