United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is the April 20, 2015 Report and Recommendation ("R&R") by Magistrate Judge Mark Aspey. (Doc. 37).
Plaintiff is a pretrial detainee at Fourth Avenue Jail in Phoenix, Arizona. (Doc. 1). His original complaint was filed on July 17, 2014; he amended this complaint on November 20, 2014. (Doc. 1); (Doc. 9). Plaintiff now moves to amend his complaint a second time. (Doc. 23). Plaintiff alleges that Defendants have violated his Eighth and Fourteenth Amendment rights by improperly treating his colostomy and by not providing adequate medical and sanitation supplies. (Doc. 23, Ex. 2 at 3-12A). Plaintiff requests injunctive relief, asking for a colostomy reversal, paid for by Defendants, at a hospital of his choosing, and damages of $2, 500, 000. ( Id. at 6).
The Magistrate Judge issued his R&R regarding Plaintiff's Proposed Second Amended Complaint ("PSAC") on April 20, 2015, recommending that the Court allow the amendment and dismiss Counts One, Three, Ten, Eleven, Thirteen, Fifteen, and Seventeen, and Defendants Frye and Piirinen. (Doc. 37). Plaintiff objects to these recommended dismissals. (Doc. 43).
II. Standard of Review
This 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). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ); accord Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, but not otherwise.'"); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court "must review de novo the portions of the [magistrate judge's] recommendations to which the parties object."). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the [R&R] to which objection is made.").
III. Motion to Amend
Plaintiff has already amended once as a matter of course; therefore he can only amend by written consent of the opposing party, or by leave of the Court. Fed.R.Civ.P. 15(a); (Doc. 9). The Court should freely give leave to amend "when justice so requires." Id. In making this determination, the Court should consider: "(1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of the amendment, and (5) whether plaintiff has previously amended its complaint.'" W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991) (quoting Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)); accord Foman v. Davis, 371 U.S. 178, 182 (1962). Each factor is not given equal weight; "[f]utility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The most important factor in this analysis is prejudice to the opposing party. Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973).
"[T]he rule favoring liberality in amendments to pleadings is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits from the representation of counsel.'" Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). This leniency is amplified in civil rights cases. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987).
"A district court abuses its discretion by denying leave to amend where the complaint's deficiencies could be cured by naming the correct defendant." Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013). "If the identity of any defendant is unknown, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.'" Id. (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).
A. Bad Faith
Defendants have the burden of proving that Plaintiff's amendment was made in bad faith. See Richardson v. United States, 841 F.2d 993, 999 (9th Cir. 1988). Defendants assert that Plaintiff's proposed amendments "are made in bad faith, " but provide no supporting evidence or explanation. (Doc. 32 at 11). Defendants thus fail to meet their evidentiary burden, and the amendment cannot be characterized as being made in bad faith. (Doc. 32 at 11).
B. Undue Delay
Plaintiff filed his First Amended Complaint on November 20, 2014, (Doc. 9), and his PSAC on March 2, 2015, (Doc. 23). The Court finds that this minimal time period does not constitute undue delay. Compare Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (finding undue delay where plaintiff filed an amended complaint nearly two years after the initial complaint was submitted), with DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185, 187-88 (9th Cir. 1987) (finding no undue delay where the plaintiff filed a second amended complaint on March 7, 1986 and a third amended complaint in April of 1986).
Furthermore, Plaintiff's PSAC was made within the May 15, 2015 deadline set forth in the Magistrate Judge's February 18 scheduling order. (Doc. 22). Consequently, the amendment was made within a time period reasonably expected by the parties. See Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999) (finding undue delay where an amendment was proposed "several months after the stipulated deadline for amending" the complaint). Accordingly, Plaintiff did not generate undue delay in filing his amendment.
C. Prejudice to the Opposing Party
Defendants bear the burden of proving that prejudice exists. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). They have not alleged how the amendment would give rise to prejudice, and thus have not met their evidentiary burden. (Doc. 32 at 11).
Furthermore, prejudice most often results when the defendant would have to engage in additional discovery. See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (finding prejudice where amendment would require "further discovery" and would delay the proceedings); W. Shoshone Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir. 1991) (finding prejudice to the opposing party where amendment would require "additional discovery, briefing, and argument" which would create a "lapse of time" in litigation); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1161 (9th Cir. 1989) (finding prejudice where amendment would require additional discovery). Because granting the amendment would not necessitate additional discovery, and because Defendants did not meet their evidentiary burden, the Court concludes that Defendants will not be prejudiced if the Court allows Plaintiff to amend.
D. Futility of the Amendment
"A district court does not err in denying leave to amend where the amendment would be futile... [or] would be subject to dismissal." Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (citations omitted). "However, a proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).
Defendants Perez and Quaid argue that amendment would be futile because Plaintiff's claims are not permissible under A.R.S. §§ 12-821 and 12-821.01, which bar "any claim against a public entity or public employee unless the claimant files a notice of claim within 180 days of the incident in which the claim arose." (Doc. 32 at 8); accord Ariz. Rev. Stat. Ann. §§ 12-821, 12-821.01. Since these statutes regulate state claims, and Plaintiff's claims derive from the U.S. Constitution, they do not render the amendment futile. See West v. United States, No. CV-14-00254-PHX-DGC, 2015 WL 427715, at *2-3 (D. Ariz. Feb. 2, ...