Carroll v. Toele

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 TREMAYNE CARROLL, Case No.: 3:20-cv-00079-BAS-RBM CDCR #H-73384, [12] ORDER OVERRULING Plaintiff, 13 OBJECTION TO ORDER DENYING vs. RECONSIDERATION AND [14] GRANTING PLAINTIFF’S C/O TOELE, et al., 15 REQUEST FOR LEAVE AND Defendants. EXTENSION OF TIME TO FILE [16] SECOND AMENDED COMPLAINT 17 PURSUANT TO Fed. R. Civ. P. 15(a)(2) [18] [ECF No. 16] [19] 20 Currently before the Court is Plaintiff Tremayne Carroll’s “Objection to Order 21 Denying Reconsideration and Appointment of Counsel‒Motion Requesting (180) Days 22 Extension of Time.” (See “Pl.’s Obj.,” ECF No. 16.) Plaintiff objects to the Court’s July 23 24, 2020 Order denying his previous motion for reconsideration of the Court’s June 25, 24 2020 initial screening and sua sponte dismissal of his claims against Defendant Toele, 25 requests a 180-day extension of time in which to amend them due to the COVid-19 26 pandemic, and asks to “delete” a letter he previously addressed to the Court and Clerk of 27 Court. (Id. at 1.) Because Plaintiff’s objection is not authorized by statute, Federal Rule 28 of Civil Procedure, or Local Rule, it is OVERRULED. However, in light of the procedural 1 posture of the case, Plaintiff’s pro se status, inter-prison transfer, limited library access and 2 because Fed. R. Civ. P. 15 favors liberal leave to amend, the Court GRANTS Plaintiff 45 3 additional days in which to file a Second Amended Complaint, and DIRECTS the Clerk 4 to strike his letter from the docket. 5 I. Procedural History 6 On June 25, 2020, the Court screened Plaintiff’s original Complaint and dismissed 7 his Eighth and First Amendment claims as alleged in Count 1 against Defendant Toele, a 8 Correctional Officer at Richard J. Donovan Correctional Facility (“RJD”), sua sponte 9 pursuant to 28 U.S.C. § 1915 (e)(2)(b)(ii) and § 1915A(b)(1). (See ECF No. 8 at 14‒15, 10 18‒19, 22.) On July 17, 2020 Plaintiff filed a motion seeking reconsideration of that 11 dismissal and requesting appointment of counsel, but the Court denied both those requests 12 on July 24, 2020. (See ECF No. 11.) Plaintiff was reminded that if he chose to amend, he 13 must include all his claims in one amended pleading, and file it no later than August 10, 14 2020. (Id. at 5.) 15 Just five days later, on July 29, 2020, Plaintiff filed his First Amended Complaint, 16 together with a letter addressed to “Clerk/Court.” (See ECF Nos. 12, 14.) Plaintiff’s letter 17 included notice of his interim change of address from RJD to Mule Creek State Prison, as 18 well as confidential information he now contends was “not addressed to the Court” and 19 “should be deleted immediately” because it could place him and others at risk.1 (See Pl.’s 20 Obj., ECF No. 16 at 1‒2.) [22] 1 The Court has reviewed Plaintiff’s letter and finds it does not appear to be related to any of the allegations 23 raised against any of the named Defendants in either his original or amended pleadings in this case. See Fed. R. Civ. P. 12(f) (“The Court may strike from a pleading an insufficient defense or any redundant, [24] immaterial, impertinent, or scandalous matter.”). “Immaterial matter is that which has no essential or 25 important relationship to the claim for relief” and “[i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524 , 1527 26 (9th Cir. 1993) (internal citation omitted), rev’d on other grounds, 510 U.S. 517 (1994). The Ninth Circuit has affirmed that a court’s inherent power to control its own dockets includes the right to strike documents 27 other than pleadings. See Lamos v. Astrue, 275 F. App’x 617, 618 (9th Cir. 2008); see also Smith v. Frank, 923 F.2d 139, 142 (9th Cir. 1991); In re Acadia Pharm. Inc. Secs. Litig., No. 18-CV-01647-AJB-BGS, [28] 1 On August 11, 2020, and before the Court had the opportunity to screen Plaintiff’s 2 Amended Complaint, he filed an “Objection” to the Court’s July 24, 2020 Order (ECF No. 3 16).2 In it, Plaintiff claims to have not received the Court’s Order denying his Motion for 4 Reconsideration until August 5, 2020, after he had already filed his Amended Complaint, 5 and requests an additional 180 days in which to file “an amended complaint regarding C/O 6 Toele’s violations.” (Id. at 1.) Plaintiff bases his need for more time both on the delay of 7 his receipt of the Court’s July 24, 2020 Order, and “in light of CoVid-19 and there being 8 no law library access” as a result of the pandemic. (Id.) 9 II. Leave to Amend 10 “A party may amend its pleading once as a matter of course within: (A) 21 days after 11 serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days 12 after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), 13 (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a party must 14 seek the opposing party’s written consent or leave of court to amend a pleading. Fed. R. 15 Civ. P. 15(a)(2). 16 Here, some of the claims in Plaintiff’s original Complaint have been dismissed sua 17 sponte and he has filed an Amended Complaint which has yet to be screened pursuant to [18] 28 U.S.C. §§ 1915 (e)(2) and 1915A, or served on any party. Thus, at this stage of the [20] 21 2 Plaintiff has repeatedly filed “objections” in this case which are not authorized by statute, Federal Rule of Civil Procedure, or Local Civil Rule. (See, e.g., ECF Nos. 7, 16.) The Court has accepted these filings 22 despite their procedural deficiencies and has construed them liberally in light most favorable to him. See Prof’l Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349 , 1353 (9th Cir. 1994) (noting district judge’s 23 broad discretion to depart from local rules “where it makes sense to do so and substantial rights are not at stake.”). However, pro se litigants are still “bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 24 52, 54 (9th Cir. 1995). Therefore, Plaintiff is advised that the filing of objections at this stage is improper 25 because the assigned magistrate judge has yet to issue any rulings in this case. While future post-service proceedings may be referred to Judge Montenegro pursuant to 28 U.S.C. § 636 (b)(1) and S.D. Cal. CivLR 26 72.3, nothing in the Federal Magistrate’s Act or the Federal Rules authorizes the filing of objections except when a magistrate judge has issued proposed findings and recommendations to the assigned district judge 27 on a pretrial matter exempted by 28 U.S.C. § 636 (a)(B)(1)(A). See 28 U.S.C. § 636 (b)(1)(C); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s disposition that [28] 1 proceedings “it is not clear that he requires leave of court to amend.” See e.g., Rose v. City 2 of Reno, No. 3:19-CV-00166-RCJ-WGC, 2020 WL 2563283 , at *2 (D. Nev. Apr. 14, 3 2020), report and recommendation adopted, No. 3:19-CV-00166-RCJ-WGC, 2020 WL 4 2566819 (D. Nev. May 20, 2020). 5 Nevertheless, Plaintiff expressly seeks leave to amend, and if necessary, the Court 6 should “freely give [it] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Rule 15’s policy 7 favoring amendment is applied with “extreme liberality,” Eminence Capital, LLC v. 8 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (citation omitted); Hart v. Larson, 232 9 F. Supp. 3d 1128, 1141 (S.D. Cal. 2017), and the court’s discretion to permit it “must be 10 guided by the underlying purpose of Rule 15‒‒to facilitate decision on the merits rather 11 than on the pleadings or technicalities.” DCD Programs, Ltd. v. Webb, 655 F.2d 977 , 979 12 (9th Cir. 1981) (citation omitted). Leave to amend need not be given where amendment: 13 “(1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay 14 in litigation; or (4) is futile.” Amerisource Bergen Corp. v. Dialysist West, Inc., 465 F.3d 15 946, 951 (9th Cir. 2006) (citation omitted). None of those factors are yet present here. 16 Therefore, the Court construes Plaintiff’s Objection to its Order Denying 17 Reconsideration (ECF No. 16) as a motion for leave to amend once again, and GRANTS 18 him an extension of time in which to do so. The Court will defer the initial screening that 19 would otherwise be required of the Amended Complaint filed on July 29, 2020 pursuant to [20] 28 U.S.C. § 1915 (e)(2) and § 1915A until Plaintiff has had this additional opportunity to 21 amend, as any Second Amended Complaint he files will supersede that pleading in its 22 entirety. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542 , 1546 23 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”). 24 III. Conclusion and Orders 25 For the reasons discussed, the Court OVERRULES Plaintiff’s Objection to its 26 Order Denying Reconsideration (ECF No. 16), construes it as a request for leave to amend 27 pursuant to Fed. R. Civ. P. 15(a)(2), GRANTS Plaintiff’s request for an extension of time 28 in which to file a Second Amended Complaint, and DIRECTS the Clerk of the Court to 1 STRIKE the letter previously filed as ECF No. 14 from the docket of this case. 2 Plaintiff is again reminded, however, that should he chose to file a Second Amended 3 Complaint, he must do so according to the instructions provided in the Court’s June 25, 4 2020 Order (ECF No. 8) on or before September 28, 2020.3 Plaintiff’s pleading must be 5 identified as his “Second Amended Complaint,” include Civil Case No. 3:20-00079-BAS6 RBM in its caption, and be complete in itself without reference to his original or First 7 Amended Complaints. See S.D. Cal. Civ. L.R. 15.1. This includes his Eighth and First 8 Amendment claims against Defendants Sanchez, Rucker, Maygar, Meza, Buenrostro, 9 Hampton, Owens, Rocha, and Navarro as alleged in Count 2 of both his original and First 10 Amended Complaints which have already survived screening, and which, if he wishes to 11 pursue them, must nevertheless be realleged in his Second Amended Complaint.4 Any 12 Defendant not named and any claim not realleged in the Second Amended Complaint will 13 be considered waived. No further objections will be sustained and no additional requests 14 for reconsideration will be granted. Should Plaintiff’s Second Amended Complaint 15 continue to include allegations that fail to state a claim upon which § 1983 relief may be 16 granted, they may be dismissed without further leave to amend. 17 The Clerk of the Court is further DIRECTED to provide Plaintiff with a blank court18 [20] 3 Plaintiff requested 180 days to amend, but the Court finds such a lengthy extension is not warranted. His 21 Second Amended Complaint does not require any case citation or legal analysis of the Federal Rules, and does not require him to conduct legal research in the prison’s law library. Instead, Plaintiff must simply 22 complete the form complaint provided by the Clerk in his own words and allege facts already known to him that plausibly entitle him to relief in light of the legal precedent identified at length in the Court’s 23 June 25, 2020 Order. See Rosenblum v. Ellis, No. 1:05-CV-01473-LJO-GSA-PC, 2010 WL 2471148 , at *2 (E.D. Cal. June 10, 2010) (advising pro se prisoner that the “lack of access to the law library is not [24] sufficient grounds for a motion for extension of time in which to file an amended complaint.”); id. (“The 25 amended complaint does not require legal analysis. Plaintiff must simply allege the facts that entitle him to relief, and state the legal cause of action for each claim.”). [26] 4 The Court has previously incorporated allegations raised against Sgt. Rocha and C/O Navarro in 27 Plaintiff’s motions and exhibits, (see ECF No. 5), and has considered them “as though they were included in his original Complaint.” (See ECF No. 8 at 11.) He is warned, however, that should he wish to reallege [28] 1 ||approved form Second Amended Civil Rights Complaint pursuant to 42 U.S.C. § 1983 for 2 || his use and convenience. 3 If Plaintiff elects not to amend, he must likewise notify the Court in writing on or 4 before September 28, 2020 that he wishes to proceed only with his Eighth and First 5 Amendment claims against Defendants Sanchez, Rucker, Maygar, Meza, Buenrostro, 6 ||Hampton, Owens, Rocha, and Navarro as alleged and incorporated in Count 2 of his 7 || original Complaint, and as realleged as Count 2 in his First Amended Complaint. Should 8 ||he chose this latter option, the Court will direct the United States Marshal to effect service 9 Plaintiff's First Amended Complaint on those parties only pursuant to 28 U.S.C. 10 1915(d) and Fed. R. Civ. P. 4(c)(3), and will dismiss all other parties and insufficiently 11 || pleaded claims pursuant to 28 U.S.C. § 1915 (e)(2) and § 1915A(b). 12 IT IS SO ORDERED. [13] 14 || DATED: August 13, 2020 ( yp lig _( Ayphoar i BES a BAN [28] 6 oe