Mullen v. Surtshin

• Decision Date: 09 December 2008
• Docket Number: Case No. C 03-3676 RMW (PR).
• Parties: Bartolo MULLEN, Plaintiff, v. Stephen SURTSHIN, et al., Defendants.
• Court: U.S. District Court — Northern District of California

590 F.Supp.2d 1233

Bartolo MULLEN, Plaintiff, v. Stephen SURTSHIN, et al., Defendants.

Case No. C 03-3676 RMW (PR).

United States District Court, N.D. California.

December 9, 2008.

COPYRIGHT MATERIAL OMITTED

Bartolo Mullen, Napa, CA, pro se.

Gregory David Brown, Office of the Attorney General, San Francisco, CA, Lynn Anne Garcia, Anwyl Scoffield & Stepp, Sacramento, CA, for Defendants.

ORDER ADDRESSING PENDING MOTIONS

RONALD M. WHYTE, District Judge.

On August 7, 2003, plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against Napa State Hospital and its staff concerning the conditions of his confinement. Plaintiff has filed a motion to amend, appoint counsel, certify class, and hold pro se pleadings to a less stringent standard (docket no. 76); motion for the court to provide the plaintiff price of copies (docket no. 77); motion for permission to add defendants or accept pleading as a separate claim/complaint (docket no. 79); motion for emergency injunctive relief (docket no. 82); and another motion for injunctive relief (docket no. 86). For the reasons stated below, the court will DENY plaintiffs request to amend his complaint, deny his request to certify cases as a class action, DENY his request to appoint counsel, and GRANT his request to hold his pleadings to less stringent standards (docket no. 76); GRANT the motion for the court to provide plaintiff price of copies (docket no. 77); DENY the motion for permission to add defendants or accept pleading as a separate claim/complaint (docket no. 79); and DENY motions for injunctive relief (docket nos. 82 and 86). Defendants have filed three separate motions to dismiss (docket nos. 56, 58, 67, 81). For the reasons stated below, the court will DENY defendants' motions to dismiss. Napa State Hospital defendants have filed a motion for extension of time to file a reply to plaintiffs opposition to the motion to dismiss (docket no. 85), which the court denies as moot.

DISCUSSION

A. Plaintiff's Motion to Amend Complaint, Appoint Counsel, Certify Class, and Hold Pro Se Pleadings to Less Stringent Standards

1. Motion to Amend Complaint

Plaintiff requests another amendment to his complaint in order to respond to defendant Kessler's motion to dismiss. Specifically, he states that he has filed complaints with Patients' Rights over the years, of which he has kept copies, and he would like to list each and every specific act for which defendant Kessler is responsible that violated his constitutional rights.

A plaintiff may amend his complaint once as a matter of course at any time before a responsive pleading is served. See Fed.R.Civ.P. 15(a). Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments and, in general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir.1994). In considering whether to grant or deny a motion seeking leave to amend a complaint, the court may consider whether there is (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility in the amendment, and (5) whether plaintiff has previously amended his complaint. See Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.1990). A district court's discretion to deny leave to amend is particularly broad where the plaintiff has previously filed an amended complaint. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir.2003).

Here, plaintiff filed several motions to amend his complaint, originally filed over five years ago, on August 7, 2003. On April 27, 2005, the court granted plaintiffs request to file an amended complaint. On June 23, 2005, plaintiff filed a first amended complaint. On December 19, 2007, the court granted plaintiff another opportunity to file an amended complaint. On January 10, 2008, plaintiff filed a second amended complaint, which was served on named defendants on June 3, 2008. On August 5, 2008, plaintiff filed a third request to amend his complaint, prompted by several of the defendants' motion to dismiss. On September 11, 2008, 2008 WL 4279472, the court denied this motion without prejudice to re-filing the motion within thirty days, accompanied by the proposed amended complaint. Plaintiff has not filed such a proposed amended complaint as instructed by the court. In sum, plaintiff has filed two amended complaints and has seemingly foregone a third opportunity to file another.

Applying the factors used to determine whether to grant a motion to amend, the court finds that undue delay, prejudice to the opposing parties, and the fact that plaintiff has previously filed two amended complaints, weigh in favor of denial. See id. Not only has plaintiff previously been given three opportunities to amend, but the court also notes that this case has been pending for over five years. Further, another amendment is likely to cause unnecessary prejudice to the remaining defendants who have already also filed separate motions to dismiss. It appears that plaintiff wishes to amend his complaint to respond to defendant Kessler's motion to dismiss.¹ However, plaintiff offers no excuse as to the undue delay of why he is requesting yet another amendment at this late date. See Allen, 911 F.2d at 373. In addition, a review of plaintiffs motion suggests that the facts he wishes to raise, in an amended complaint concerning defendant Kessler have already been raised in his second amended complaint in general, and it is clear that the factual bases of such claims were known to plaintiff for years, as he concedes. See id. Finally, plaintiff proffers no explanation as to why he failed to "fully develop his contentions" originally, or in his first or second amended complaints. See id. (internal quotations omitted.) Accordingly, the court DENIES plaintiffs motion to amend the complaint.

2. Motion to Certify Class, Appoint Counsel, and Hold Pro Se Pleadings to a Less Stringent Standard

Plaintiff's request for class certification is DENIED for the reasons already stated in the court's October 18, 2008 order. Plaintiffs request for the court to appoint counsel is DENIED without prejudice for the reasons already stated in the court's October 18, 2008 order. Plaintiffs request for the court to hold his pleadings to a less stringent standard is GRANTED for the reasons already stated in the court's June 3, 2008 order.

B. Motion for Court to Provide Plaintiff the Price to Purchase Copies of the Exhibits that he Already Mailed to the Court

Plaintiff requests the court provide him with a page count of all the exhibits attached to the second amended complaint, as well as the price it would cost to mail copies of such exhibits back to him. Plaintiff asserts that he needs these copies to go with other exhibits that he has received so that he can show a pattern or practice of unconstitutional conduct.

The court GRANTS plaintiffs motion. The Clerk shall send a standard "Request for Copies" form to plaintiff to fill out his request.

C. Motion for Permission to Add Defendants or Accept Pleading as a Separate Retaliation Claim; Request for Preliminary Injunction and Order to Show Cause

1. Motion to Add Defendants or Accept Pleading as Separate Claim

Plaintiff requests permission to add seven more defendants to his complaint or file a new complaint to include such defendants and a separate retaliation claim that allegedly occurred in August 2008. Specifically, plaintiff alleges Mohamed El-Sabaawi, M.D., Recreational Therapist Gary Dyke, Carmen Caruso, John Dickinson, Linda Howard, Ken Wright, and Canteen worker Kathy conspired and retaliated against plaintiff for exercising his First Amendment right to file grievances and complaints.

Federal Rule of Civil Procedure 15(d) allows for a party to supplement his pleading "upon reasonable notice and upon such terms as are just" to set forth "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." A supplemental pleading "cannot be used to introduce a `separate, distinct and new cause of action.'" Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir.1997) (citation omitted). The court may deny a motion to supplement when the supplemental pleading could be the subject of a separate action. See id. The court also may consider whether permitting the supplemental pleading will promote judicial efficiency. See id.

Here, plaintiff's case has been pending for over five years. To continue adding claims or defendants will prolong the suit for an indefinite amount of time. Because the originally named defendants could be prejudiced by yet another delay and because of the length of time this case has been pending, the court exercises its discretion in denying plaintiffs motion to add defendants or a separate claim. For the reasons stated above, in addition to the reasons stated in the court's denial of plaintiffs motion to amend, the court also DENIES plaintiff's motion to add defendants or accept pleading as a separate claim/complaint. Should plaintiff wish to pursue this separate cause of action, he may file a separate suit.

2. Temporary Restraining Order / Preliminary Injunction / Emergency Injunctive Relief Due to Retaliation

Plaintiff has filed a motion for a temporary restraining order and a preliminary injunction, a motion for emergency injunctive relief concerning the alleged harassment by defendants and claims that the defendants are trying to impede his lawsuit, and another motion for injunctive relief because the defendants are prohibiting him from using computerized research, thereby denying him meaningful access to the courts.

Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a preliminary injunction or temporary restraining order ("TRO"). The Ninth Circuit has held that a request for a TRO and injunctive relief may be based upon either of two sets of criteria. The "traditional"...