Opinion
No. C 09-01042 JSW.
October 14, 2011
ORDER GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; ORDER OF SERVICE AND DIRECTIONS TO PARTIES
INTRODUCTION
This matter comes before the Court upon consideration of the Motion for Leave to File an Amended Complaint, filed by Plaintiff Earl Young ("Young"). The Court has considered the parties' papers, relevant legal authority, and the record in this case, and it finds the matter suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The Court VACATES the hearing set for October 28, 2011, and HEREBY GRANTS Young's motion.
BACKGROUND
On March 10, 2009, Young, acting pro se, filed his original complaint in this action. Young brought claims against T. Holmes, M. Bullock, K. Kiplinger, and T. Buchanan, all of whom are correctional officers at Pelican Bay State Prison. In that Complaint, Young alleged that the defendants used excessive force against him when he was returning to his cell after taking a shower. ( See Docket No. 1 (Compl., Statement of Facts, ¶¶ 1-6).) Young alleges that "other correctional officers ran into the area to assist" Holmes, and he also alleges that "responding staff, including defendant T. Holmes began kicking and beating [Young] with their hands feet and state issued weapons." ( Id., ¶¶ 2, 4.)
Young also alleged that "[c]orrectional staff then placed Plaintiff in Administrative Segregation (Ad-Seg) for the false charges of `Attempted Murder on a Peace Officer,' which was ordered by Correctional Lieutenant D. Kays." ( Id. ¶ 9; see also id. ¶¶ 10-13 (alleging that Young was ordered to serve a 48 month prison term in solitary confinement on the alleged false charges).) Young sought damages in the amount of $250,000 from each of the named defendants.
On June 3, 2009, the Court issued an Order of Service permitting the claims of excessive force to go forward against the four defendants. (Docket No. 3.) On March 14, 2011, the Court denied summary judgment. (Docket No. 49.) On July 25, 2011, after the parties failed to resolve their differences at a settlement conference, the Court appointed counsel for Young. (Docket Nos. 53, 60, 62-63.)
On August 31, 2011, Young filed his motion for leave to amend the complaint. Young proposes to add nine defendants, a claim for relief based on an alleged failure to intervene, a claim for relief based on the deprivation of liberty without due process, and a prayer for punitive damages. The Court held a case management conference on September 16, 2011. Because the Court had anticipated that this case was ready to proceed to trial, the Court inquired whether Defendants would have opposed the motion if no further dispositive motions were permitted. Defendants stated that fact would have altered their position. The Court continued the hearing on the motion to amend to permit Defendants an opportunity to file a substantive opposition.
ANALYSIS
Young seeks leave to amend under Rule 15. That rule provides that, "[a] party may amend its pleading once as a matter of course, . . . 21 days after serving it, or . . . 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). Young argues that he is entitled to amend as a matter of right, because Defendants have not yet filed a responsive pleading and because the original Defendants' motion for summary judgment is not a motion under Rule 12(b), (e), or (f).
Defendants have not argued that Young cannot amend as a matter of right under Rule 15(a). ( See Docket No. 70, Statement of Non-Opposition at 2:6-8; Docket No. 77, Opposition at 1:4-7.) Based on Defendants' lack of opposition, Young's motion for leave to amend is GRANTED.
Pursuant to 42 U.S.C. § 1997e, "[a]ny defendant may waive the right to reply to any action brought by a prisoner confined in any jail, prison, or other correctional facility under section 1983 of this title or any other Federal law. Notwithstanding any other law or rule of procedure, such waiver shall not constitute an admission of the allegations contained in the complaint. No relief shall be granted to the plaintiff unless a reply has been filed. . . . The court may require any defendant to reply to a complaint brought under this section if it finds that the plaintiff has a reasonable opportunity to prevail on the merits." 42 U.SC. § 1997e(g)(1)(2).
Neither Young nor the Defendants have addressed interplay of Section 1997e(g), which permits a defendant to waive a reply, and Rule 15(a)(1)(B), which applies "if the pleading is one to which a responsive pleading is required." Because Defendants have not opposed Young's motion under Rule 15(a), because the issue is not fairly presented, and because Defendants will have the opportunity to raise their arguments in favor of dismissal of the amended complaint by way of a motion to dismiss, the Court does not reach this issue sua sponte.
In their opposition, Defendants asked, if the Court granted Young leave to amend, that the Court also screen the complaint. That request is granted. Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(A). The Court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Having reviewed the proposed Amended Complaint, the Court finds that Young's allegations state cognizable claims for failure to intervene and for deprivation of his liberty without due process of law.
Finally, Defendants argue that the amended complaint should be dismissed because it is barred by the statute of limitations, because Young has failed to exhaust the proposed claims for relief, and because Young's due process rights were not violated. The Court finds that these arguments should be raised by a properly filed motion to dismiss under Federal Rule of Civil Procedure 12(b).
CONCLUSION
For the foregoing reasons, Young's Motion for Leave to File the Amended Complaint is GRANTED. The Clerk of the Court shall issue summons, and Young shall file and serve a copy of the Amended Complaint and all attachments thereto, on all defendants by no later than October 28, 2011. Defendants shall file a responsive pleading or a motion to dismiss within twenty-one days after service of the Amended Complaint.
IT IS SO ORDERED.