United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
plaintiff DaJuan Torrell Williams has moved for leave to
amend his first amended complaint. Doc. 84. The motion is
fully briefed. Docs. 91, 94. Magistrate Judge Camille Bibles
issued a Report and Recommendation (“R&R”)
recommending that the Court deny the motion. Docs. 104. The
Court will accept the R&R and deny Plaintiff's
filed a prisoner civil rights complaint pursuant to 42 U.S.C.
§ 1983 on June 13, 2017. Doc. 1. He later filed a first
amended complaint, which alleges that Defendants violated his
First Amendment rights by enforcing a prison policy which
prohibits inmates from possessing “sexually explicit
material or content that is detrimental to the safe, secure,
and orderly operation of the facility.” Doc. 104
(quoting Doc. 13 at 5). He alleges that Defendants have
withheld certain written materials from him that do not fall
within the policy's prohibition and that the deprivation
of those items has violated his rights.
discovery deadline was August 8, 2018, and the deadline for
filing dispositive motions passed on October 7, 2018. Doc.
27. Defendants' summary judgment motion is pending. Doc.
65. Plaintiff seeks leave to add six defendants and the
allegation that 43 other reading items have been wrongfully
withheld. Doc. 84.
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). “[T]he
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). 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); see also 28 U.S.C. § 636(b)(1).
makes clear that the Court “should freely give leave
[to amend] when justice so requires.” Fed.R.Civ.P.
15(a)(2). The policy in favor of leave to amend must not only
be heeded, Foman v. Davis, 371 U.S. 178, 182 (1962),
it must be applied with “extreme liberality, ”
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
708, 712 (9th Cir. 2001). But “[a] trial court may deny
such a motion if permitting an amendment would prejudice the
opposing party, produce an undue delay in the litigation, or
result in futility for lack of merit.” Jackson v.
Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir.1990)
(citing Foman, 371 U.S. at 182). “Prejudice to
the opposing party is the most important factor.”
R&R concluded that permitting Plaintiff to amend his
complaint at this late date would prejudice the existing and
new defendants and delay the proceedings. As already noted,
discovery is completed and Defendant's pending summary
judgment motion, if granted, would deny Plaintiff relief on
all current claims.
generally objects and asserts that the R&R failed to
consider seven facts, which the Court construes as the
following: (1) Plaintiff has amended his complaint only once;
(2) Plaintiff is proceeding pro se, Rule 15 does not
“explicitly mandate or designate a specific
time” in which to request leave to amend, and
Plaintiffs correctional facility has no law library; (3)
Plaintiff notified Defendants before the completion of
discovery that he would move for leave to amend; (4)
Plaintiff notified Defendants 70 days before their summary
judgment motion that he would move for leave to amend; (5)
Plaintiff filed a motion to compel discovery before
Defendants filed their summary judgment motion and waited 90
days for the Court's order; (6) Plaintiff has acted in
good faith and not with undue delay; and (7) Plaintiff has
been prejudiced. Doc. 108 at 1-2.
asserts that he intended to seek leave to amend 70 days
before Defendants moved for summary judgment in October 2018.
See Doc. 108 at 2. Yet Plaintiff did not file this
motion until February 2019, nine months after discovery
closed. Allowing Plaintiff to amend now would prejudice
Defendants by requiring additional discovery on six new
defendants and 43 withheld items, and would further delay
litigation and disposition of Defendants' motion. See
Jackson, 902 F.2d at 1387; Foman, 371 U.S. at
was informed of the procedure for seeking leave to amend and
provided with discovery deadlines. Docs. 9 at 13; 27. And
Defendants would be no less prejudiced by the additional
discovery and delay simply because Plaintiff notified them
more than eight months ago that he might seek leave to amend.
See Zivkovic v. S Cal Edison Co., 302 F.3d 1080,
1087 (9th Cir. 2002) (affirming district court's denial
of motion to amend filed five days before close of
discovery). The Court will accept the R&R and deny