Opinion
3:20-cv-01935-JR
03-15-2023
SHON LA'ROY JOHNSON, Plaintiff, v. PAT GARRETT, et al., Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff, an adult in custody at the Eastern Oregon Correctional Institution, brings this civil rights action pursuant to 42 U.S.C. § 1983 pro se. Currently before the Court are plaintiff's Motion for Leave to File Amended Complaint (ECF No. 62), plaintiff's Proposed [Second] Amended Complaint (ECF No. 63), defendants Jimenez and Paul S.F.'s Motion to Strike Amended Complaint (ECF No. 64), and defendants Garrett, Loke, Monson, Noli, and Starr's Motion to Strike Amended Complaint (ECF No. 65). For the reasons that follow, plaintiff's Motion for Leave to Amend should be DENIED, and defendants' Motions to Strike should be GRANTED.
BACKGROUND
Plaintiff filed his original Complaint (ECF No. 2) with this Court on November 6, 2020. Plaintiff alleges that, while in custody at the Washington County Jail, defendants denied him religious meals for Ramadan in violation of his rights under the First Amendment, discriminated against him in violation of the Fourteenth Amendment, and retaliated against him. Defendants moved to dismiss plaintiff's complaint, and in response, on September 14, 2021, plaintiff filed an Amended Complaint (ECF No. 35) addressing the deficiencies noted in defendants' motion to dismiss and clarifying his claims for relief.
On October 19, 2021, this Court issued an Order (ECF No. 38) noting that the Court conducted a review of plaintiff's Amended Complaint as required under 42 U.S.C. § 1997(e)(g)(2), concluded that plaintiff has a reasonable opportunity to prevail on one or more claims and, therefore, ordered defendants to file an Answer or other responsive pleading. On November 17, 2021, defendants filed their respective Answers (ECF Nos. 39 and 40).
On November 18, 2021, the Clerk of the Court issued a Scheduling Order for Civil Actions Filed by Prisoners (ECF No. 41) providing, inter alia, that not later than 120 days thereafter the parties shall file all pleadings and join all claims, remedies, and parties. The Scheduling Order also set deadlines to complete discovery and file discovery, pretrial, and dispositive motions. On March 11, 2022, and again on March 9, 2023, the Court extended the deadlines to complete discovery and file discovery, pretrial, and dispositive motions. The parties have not requested, however, and the court has not granted, any extension of time to file all pleadings and join all claims, remedies, and parties.
On September 12, 2022, plaintiff filed a Motion for Leave to File Amended Complaint (ECF No. 62). The motion consisted of a single post-card, with no proposed Amended Complaint attached. On September 29, 2022, plaintiff submitted a Proposed [Second] Amended Complaint (ECF No. 63). Defendants move separately to strike the second amended complaint and alternatively to deny plaintiff's motion for leave to amend (ECF Nos. 64 and 65).
LEGAL STANDARDS
Where a motion to amend is filed after the deadline in the scheduling order has lapsed, the moving party “must first show good cause for amendment under Rule 16(b), then, if good cause be shown, the party must demonstrate that amendment was proper under Rule 15.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992) (citation and internal quotations omitted).
Pursuant to Rule 16, a scheduling order “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609 (citations and internal quotations omitted). A corresponding Local Rule further provides:
Objections to any court-imposed deadline must be raised by motion and must: (1) Show good cause why the deadlines should be modified[;] (2) Show effective prior use of time[;] (3) Recommend a new date for the deadline in question[; and] (4) show the impact of the proposed extension upon other existing deadlines, settings, or schedules.LR 16-3(a).
Under Rule 15, leave to amend pleadings “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Courts apply this rule with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citations omitted). In determining whether a motion to amend should be granted under Rule 15, the court generally considers four factors: undue delay, bad faith, futility, and prejudice to the opposing party. Forsyth v. Humana, Inc., 114 F.3d 1467, 1482 (9th Cir. 1997) (citation omitted), overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012). Leave to amend need not be granted if the proposed amended complaint would be subject to dismissal. Ritzer v. Gerovicap Pharm. Corp., 162 F.R.D. 642, 644 (D. Nev. 1995); see also Johnson v. American Airlines, 834 F.2d 721, 724 (9th Cir. 1987) (courts have discretion to deny leave to amend a complaint for futility and futility includes the inevitability of a claim's defeat on summary judgment).
DISCUSSION
Plaintiff did not seek an extension of the pleading deadline set forth in the scheduling order, and he makes no showing of good cause for modification thereof. Where, as here, a motion to amend is lodged after the deadline for the filing of all pleadings and joinder of all claims, Fed.R.Civ.P. 16 governs. Johnson v. Mammoth Recreations, Inc., 975 F.2d at 607-09. Moreover, the “failure to seek modification of the scheduling order standing alone provides sufficient basis to deny” a motion to amend under these circumstances. Liss v. Exel Transp. Servs., Inc., No. CIV-04-2001-PHX-SMM, 2008 WL 65609, at *1 (D. Ariz. Jan. 3, 2008). Because plaintiff is proceeding pro se, however, the Court looks to whether plaintiff has demonstrated an entitlement to amendment under Rule 15. Roller v. Herrera, No. 3:18-cv-00057-JR, 2019 WL 7633161, at *3 (D. Or. May 30, 2019).
Here, plaintiff's Proposed Amended Complaint is completely unconnected to the claims alleged in his original Complaint or his Amended Complaint. Instead, the proposed pleading is a four-page narrative letter expressing plaintiff's general discontent with his situation in life and the criminal justice system in general; plaintiff makes no allegation pertaining to his confinement at the Washington County Jail or to any actions undertaken by the defendants to this action. The proffered second amended complaint fails to state a claim upon which relief may be granted under 42 U.S.C. § 1983 against the defendants. See Taylor v. List, 880 F.2d 1040 (9th Cir. 1989) (“Liability under section 1983 arises only upon a showing of personal participation by the defendant in the alleged constitutional deprivation”). Accordingly, plaintiff's motion for leave to amend should be denied, and the Proposed [Second] Amended Complaint should be stricken from the record.
CONCLUSION
For these reasons, the Court should DENY plaintiff's Motion for Leave to File Amended Complaint (ECF No. 62), GRANT defendants' Motions to Strike (ECF Nos. 64 and 65) the Proposed [Second] Amended Complaint and STRIKE the Proposed [Second] Amended Complaint (ECF No. 63) from the record.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.