United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Camille D. Bibles United Slates Magistrate Judge.
THE HONORABLE DAVID G. CAMPBELL:
the Court is Plaintiff's motion (ECF No. 84) for leave to
amend his complaint. Because a magistrate judge cannot decide
a “matter dispositive of a claim or defense or a
prisoner petition challenging the conditions of confinement,
” Rule 72(b)(1), the undersigned recommends as follows.
proceeding pro se, filed a prisoner civil rights
complaint and an application for leave to proceed in
forma pauperis on June 13, 2017. Leave to proceed in
forma pauperis was granted and the complaint was
dismissed for failure to state a claim with leave to amend.
(ECF No. 9). Plaintiff lodged an amended complaint on October
25, 2017. (ECF No. 13). In his amended complaint Plaintiff
alleges Defendants violated his First Amendment rights in
their application of Department Order 914.07, which prohibits
prison inmates from possessing “sexually explicit
material or content that is detrimental to the safe, secure,
and orderly operation of the facility.” (ECF No. 13 at
5). Plaintiff asserts the named Defendants withheld and
confiscated specific books, magazines, and other reading
material from him, based on their determination that these
specific items were prohibited by Department Order 914.07.
Plaintiff alleges these specific items do not fall within the
ambit of the order, and prohibiting him from possessing these
specific items violates his First Amendment rights.
order issued February 12, 2018, the Court ordered Defendant
Ryan to answer Counts One and Two; ordered Defendants Barner,
Anderson, and Osler to answer Count Three; ordered Defendant
Mangan to answer Counts Four and Five; ordered Defendants
Mangan and Williams to answer Count Six; ordered Defendant
Antolin to answer Count Seven; and dismissed Count Eight.
(ECF No. 17). All of the Defendants were served and answered
the Amended Complaint. In a scheduling order docketed May 8,
2018, the Court ordered all discovery be completed by August
8, 2018, and that dispositive motions be filed by October 7,
2018. (ECF No. 27). The deadline for filing dispositive
motions was later extended to February 2, 2019. (ECF No. 80).
Defendants filed a motion for summary judgment, which as
docketed October 11, 2018. (ECF No. 65). Plaintiff responded
to the motion for summary judgment on February 11, 2019. (ECF
filed the pending motion on February 7, 2019. Plaintiff seeks
leave to add six additional defendants and the allegation
that 43 additional specific items of reading material have
been wrongfully withheld or confiscated based on the
challenged Department Order. (ECF No. 84 at 2). Because
Plaintiff has docketed two prior complaints, Plaintiff is not
entitled to amend his complaint without leave of the Court.
See Fed. R. Civ. P. 15(a)(1). Defendants oppose the
motion to amend (ECF No. 91).
Standard for granting or denying a motion to amend
15(a) of the Federal Rules of Civil Procedure provides that a
plaintiff should be given leave to amend his complaint when
justice so requires. Granting or denying leave to amend is a
matter committed to the Court's discretion. Hartmann
v. California Dep't of Corr. & Rehab., 707 F.3d
1114, 1129 (9th Cir. 2013). In exercising this discretion
with regard to a motion to amend filed after a responsive
pleading, the Court should consider, inter alia, the
prejudice to the opposing party, whether granting the motion
will result in undue delay, and whether the plaintiff has
previously amended his complaint. Western Shoshone
Nat'l Council v. Molini, 951 F.2d 200, 204 (9th Cir.
1991). Granting leave to amend causes substantial prejudice
if it alters the litigation, creates additional discovery, or
causes an extreme delay. See Roberts v. Arizona Bd. of
Regents, 661 F.2d 796, 798 (9th Cir. 1981) (affirming
the district court's denial of a motion to amend when the
amendment was “raised at the eleventh hour, after
discovery was virtually complete and the Board's motion
for summary judgment was pending before the court.”).
in this matter is completed, and Defendants have filed a
motion for summary judgment which, if granted, would result
in the denial of relief on all of Plaintiff's claims.
Given that Plaintiff seeks to add additional defendants based
on new facts the Court should exercise its discretion to deny
the leave to amend. See Jackson v. Bank of Haw., 902
F.2d 1385, 1387 (9th Cir. 1990) (noting that
“[p]rejudice to the opposing party is the most
important factor” in determining whether to grant leave
to amend); Ansari v. Plummer, 43 F.3d 1478, 1994 WL
692925 (9th Cir. 1994); Duggins v. Steak ‘N Shake,
Inc., 195 F.3d 828, 834 (6th Cir.1999) (upholding denial
of leave to amend based on undue delay and undue prejudice to
the defendant where the plaintiff sought amendment after the
close of discovery). Allowing Plaintiff to add additional
claims and defendants to this suit at this time, which would
require further discovery, prejudice the existing and newly
added defendants, and delay the proceedings, is not in the
interests of justice in this matter. See Zivkovic v.
Southern California Edison Co., 302 F.3d 1080, 1087 (9th
Cir. 2002). Should Plaintiff wish to proceed against the
proposed additional defendants he may do so by initiating a
IS THEREFORE RECOMMENDED that Plaintiff's motion
at ECF No. 84, seeking leave to amend his complaint, be
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) of the Federal Rules of Appellate
Procedure should not be filed until entry of the District
Court's judgment. The parties shall have fourteen 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 fourteen 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 ...