Kitchens v. Tordsen
| Decision Date | 28 October 2014 |
| Docket Number | CASE NO. 1:12-cv-0105-AWI-MJS (PC) |
| Court | U.S. District Court — Eastern District of California |
| Parties | LANARD KITCHENS, Plaintiff, v. TORDSEN, et al., Defendants. |
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF Nos. 1 & 10.)
This matter proceeds on Plaintiff's first amended complaint regarding acts that occurred during Plaintiff's pretrial detention at Kings County Jail ("KCJ"). (ECF No. 26.) The Court screened Plaintiff's first amended complaint and found that it stated cognizable claims against Defendant Dwayne Tordsen for retaliation in violation of the First Amendment, and against Defendants Dwayne Tordsen, Coker, Leach and Day for subjecting Plaintiff to conditions of confinement that amounted to punishment in violation of the Fourteenth Amendment. (ECF No. 28.) The Court concluded that Plaintiff had failed to state (1) a First Amendment retaliat ion claim against Defendants Coker, Leach ,and Day; (2) a claim under California Code of Regulations §§ 3370(c) and 3450, or California Department Operations Manual § 54046.8 against Defendants Marryanne Tordsen and Costa; or (3) a claim under California Code of Regulations §§ 3361(a) and 3354.2(c)(1), or California Civil Code § 56.10 against Marryanne Tordsen. (Id. at 7-9.) The Court ordered Plaintiff to file an amended complaint or notify the Court of his willingness to proceed only on his cognizable claims. (ECF No. 28 at 11.) Plaintiff notified the Court of his willingness to proceed only on the cognizable claims (ECF No. 29), and, on May 31, 2013, the Court dismissed the non-cognizable claims and dismissed Defendants Marryanne Tordsen and Costa. (ECF Nos. 30 & 32.)
On May 1, 2014, Plaintiff filed a motion for leave to file an "amended/supplemental" complaint, and also lodged a proposed second amended complaint. (ECF Nos. 63 & 64.) Defendants opposed the motion (ECF No. 67), and Plaintiff filed a reply. (ECF No. 71).
On May 22, 2014, Defendants filed a motion to amend the Court's discovery and scheduling order in light of Plaintiff's motion to amend the complaint. (ECF No. 69.) Plaintiff did not oppose the motion.
These motions are deemed submitted pursuant to Local Rule 230(l).
The decision to grant or deny leave to amend pleadings is within the trial court's discretion. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996); United States v. Cnty. of San Diego, 53 F.3d 965, 969 n.6 (9th Cir. 1995).
A party seeking leave to amend pleadings must demonstrate that amendment is proper under Federal Rule of Civil Procedure 15. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). Under Rule 15(a)(2), the court should freely give leave to amend a pleading "when justice so requires." The Court should apply this policy "with extreme liberality." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission Indians v. Rose, 893 F. 2d 1074,1079 (9th Cir. 1990)). "If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Forman v. Davis, 371 U.S. 178, 182 (1962).
However, a district court may deny leave to amend where there is "'any apparent or declared reason' for doing so, including undue delay, undue prejudice to the opposing party or futility of the amendment." Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991) (quoting Forman, 371 U.S. at 182). These factors are not to be given equal weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Prejudice to the opposing party must be given the greatest weight. Id. "Absent prejudice, or a strong showing of any of the remaining Forman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id.
Plaintiff seeks leave to file an "amended/supplemental complaint adding new claims, new defendants and new information." (ECF No. 63 at 1.) Plaintiff explains that his lack of "legal knowledge" led him to misstate or omit some claims in his first amended complaint. Plaintiff believes he now is able to properly state additional claims. He also seeks leave to add new defendants. Plaintiff asserts that the statute of limitations as to these defendants would be tolled pursuant to California Code of Civil Procedure § 352(a)(3).
Defendants oppose Plaintiff's motion on the following grounds: (1) the motion may have been filed for purposes of delaying the litigation, (2) Plaintiff has known the alleged facts in his proposed second amended complaint since the filing of his original complaint, (3) the disputes regarding discovery and evidentiary issues that Plaintiff proposes to add do not constitute newly discovered evidence that would support amendment of the complaint; (3) existing and proposed defendants would be prejudiced by the extension of discovery and passage of time since the underlying events, (4) claims relating to Plaintiff's conditions of confinement are time barred, and (5) Plaintiff did not amend when given that option in the Court's screening order.
Plaintiff's proposed second amended complaint would add the following defendants: (1) Kim Pedreiro, Commander at KCJ, (2) Frank, a registered nurse at KCJ; (3) Lavan H., head nurse at KCJ, and (4) Minetta Costa, medical program manager at KCJ. (ECF No. 64.)
Plaintiff's proposed complaint contains essentially the same allegations as the operative complaint regarding the alleged housing of Plaintiff in a dirty cell. It also contains new allegations concerning the proposed new defendants. His allegations may be summarized essentially as follows.
Plaintiff was housed in the Secure Housing Unit ("SHU") of the KCJ on December 29, 2010. Defendant Tordsen searched Plaintiff's cell, found damage to the cell, and had Plaintiff strip searched. Plaintiff was handcuffed and transferred to another holding cell where he was kept for six hours. Plaintiff complained to Defendant Tordsen about his handcuffs and the holding cell. Plaintiff asked for a grievance form, but Defendant Tordsen ignored the request. Defendant Tordsen escorted Plaintiff back to the SHU and placed Plaintiff in a cell covered with feces. Defendant Tordsen provided Plaintiff with minimal cleaning materials. Cells are typically cleaned by inmate workers who have been convicted and sentenced and who are provided adequate cleaning supplies. Plaintiff had not been convicted or sentenced at the time he was placed in the dirty cell.
Plaintiff asked Defendant Tordsen to place him in a different, vacant cell. Plaintiff again asked Defendant Tordsen for a grievance form but was refused. Plaintiff asked to be provided adequate cleaning supplies but was refused.
While Defendant Tordsen was exiting the SHU at the end of his shift, Plaintiff pressed the emergency intercom button and threatened to kill himself if he was not removed from the cell. Plaintiff was not suicidal, but threatened suicide to get a response from staff. Defendants Coker, Leach, and Day responded to Plaintiff's threat. Plaintiff informed them he did not want to kill himself but just wanted a clean cell. Defendant Day gave Plaintiff the option of either cleaning the cell or being placed on suicide watch.
Plaintiff asked for a grievance form but was told by Defendant Leach that there was no grievable offense. Plaintiff asked Defendant Coker if he was going to let the other defendants violate his right to file a grievance. Defendant Coker shrugged but did not respond.
Defendant Day again asked if Plaintiff wanted to be placed on suicide watch or clean the cell. Plaintiff chose to be placed on suicide watch. Defendants Day, Leach, and Coker placed Plaintiff on suicide watch for the night. Plaintiff's commissary purchase was withheld from him. California regulations require that a suicide watch order be given by a physician or psychologist. However, Defendants did not contact medical staff regarding Plaintiff's threat. California regulations also mandate that an inmate who threatens suicide be placed on suicide precaution, not suicide watch.
Plaintiff was removed from suicide watch the next day and returned to Defendant Tordsen's custody and to the filthy cell. Plaintiff again asked to be housed in another, vacant cell but was refused. Plaintiff began to clean his cell with limited supplies. While cleaning, he slipped in a puddle of cleaning fluid, fell, and was knocked unconscious. No puddle would have formed had Plaintiff been provided adequate cleaning supplies.
When Plaintiff awoke, Defendant Tordsen and several nurses were standing outside the cell door. A nurse determined that Plaintiff was not injured. After the responding officers left, Plaintiff started to experience numbness and drooping on the right side of his face and, because he was concerned about brain damage, he decided to slit his wrists. Plaintiff was diagnosed with facial paralysis, for which there is no cure.
Defendants did not write an incident report regarding Plaintiff's placement on suicide watch or his fall inside the cell.
Defendant Tordsen wrote an incident report regarding damage to Plaintiff's prior cell, and falsely stated that Plaintiff was "rehoused to cell B86 without further incident." This statement is contradicted by Daily Population Reports showing that cell B86 remained vacant on December 29, 2010, and by safety logs showing Plaintiff was on suicide watch on December 29, 2010.
After Plaintiff was...
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