Nealy v. Shinn
| Decision Date | 28 April 2021 |
| Docket Number | CV-20-1123-PHX-DLR (JFM) |
| Parties | Charles E. Nealy, Plaintiff v. David Shinn, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION ON MOTION TO AMEND
Plaintiff seeks leave to file a Second Amended Complaint. This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of Motion to Amend is dispositive of some of Plaintiff's proposed claims, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
On July 30, 2020, pro se Plaintiff Nealy, who is confined in the Arizona State Prison Complex-Eyman, filed his First Amended Complaint (“FAC”) (Doc. 9) pursuant to 42 U.S.C. § 1983. The Court had previously granted Plaintiff's Application to Proceed In Forma Pauperis, and dismissed the original Complaint (Doc. 1) with leave to amend. (Order 7/8/20, Doc. 6.)
Plaintiff named as Defendants: Arizona Department of Corrections (ADC) Director David Shinn: Deputy Warden Karr; Disciplinary Hearing Officer Captain S. Brennan; “L.O.P.” Supervisor Sergeant Milligan; Disciplinary Coordinator/Correctional Officer (CO) III Moore; Chaplain Willis; and CO II John Doe. Plaintiff asserted four counts, including: Count 1 (free exercise of religion); Count 2 (violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA)); Count 3 (excessive force); and Court 4 (free exercise of religion).
In an Order filed August 27, 2020 (Doc. 11), the Court screened the FAC, dismissed Counts Three, Four and Five for failure to state a claim, and dismissed Defendants Shinn, Karr, Brennan, and Moore. Answers were directed from Defendants Milligan and Willis to Counts 1 and 2. The Court found Counts 1 and 2 adequately stated claims against Defendant Doe, and set a deadline for Plaintiff to name Defendant Doe. Defendants Milligan and Willis have since been served and filed Answers (Docs. 19, 20). Plaintiff has never named Defendant Doe, and the deadline for Plaintiff to file a Notice of Substitution expired on April 6, 2021.[1] (Order 1/13/21, Doc. 34.)
Plaintiff seeks leave to file his proposed Second Amended Complaint (Doc. 66.) In the SAC, Plaintiff still names as defendants: (1) Arizona Department of Corrections (ADC) Director David Shinn; (2) Deputy Warden R. Carr (previously identified as “Karr”); (3) Disciplinary Hearing Officer Captain S. Brennan; (4) “L.O.P.” Supervisor Sergeant Milligan; (5) Disciplinary Coordinator/Correctional Officer (CO) III Moore; (6) Chaplain Willis; and (7) CO II Jhon Doe. Plaintiff adds as Defendants: (8) Designee C.R. Glynn; (9) Deputy Warden L. Stickley; (10) Assistant Warden D. Walker; (11) Grievance Coordinator CO IV R. Brier; (12) Disciplinary Coordinator CO III M. Pulve; (13) CO III Pekrol; and (14) CO II Davis. Plaintiff asserts three counts: Count 1 asserts claims of the denial of free exercise of religion; Count 2 asserts violations of RLUIPA; and Count 3 asserts the use of excessive force.[2]
Plaintiff alleges that on November 22, 2019, in the Arizona Department of Corrections, Rehabilitation and Reentry (AzDCRR) Eyman Prison Complex, he was engaged in an approved Muslim prayer service, kneeling on the floor. He alleges that Defendant officers Willis and Milligan instituted an “Incident Command System” response by falsely claiming the prayer service was unauthorized. He alleges Willis and Milligan had a history of animosity toward the Muslim religion, and that Milligan threatened to have Plaintiff classified for maximum security so he could not engage in prayer services.
Plaintiff alleges that in the ensuing response, the fictitiously named Defendant “Jhon [sic] Doe” entered the room, began yelling obscenities and denouncing the Muslim religion, and aggressively grabbed Plaintiff who was in a kneeling position, and placed handcuffs on him so tightly that he cried out in pain, suffered swelling, long term pain and was required to receive medical attention, braces and physical therapy to recover.
Plaintiff then describes disciplinary actions against him resulting in the loss of various privileges, security reclassification, and the loss of earned release credits. He further describes efforts to grieve his issues regarding his religious services, and asserts that his grievances were either denied, not properly considered, or not properly forwarded up the chain of command for action. He attributes such actions to Defendants Shinn, Glynn, Stickley, Walker, Brier, Carr, Brennan, Moore, Pulve, and Pekrol.
He further alleges these defendants failed to take action to protect his religious freedoms, and instead conspired with other defendants to carry out the complained of actions (e.g. denial or burden of religious freedoms, and failure to protect from the attack by Jhon Doe). He alleges Defendant Pekrol denied him forms for witness statements to support his grievances.
In challenging the handling of his various appeals and grievances, Plaintiff asserts violations of various AzDCRR Department Orders.
Plaintiff makes no allegations against Defendant Davis but asks for injunctive relief against Davis.
Plaintiff seeks declaratory and injunctive relief, and compensatory and punitive damages.
Plaintiff seeks leave to amend his complaint. Federal Rule of Civil Procedure 15(a)(2) provides that the “court should freely give leave [to amend] when justice so requires.” “In assessing the propriety of a motion for leave to amend, we consider five factors: (1) bad faith; (2) undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).
Local Rule of Civil Procedure 15.1(a) requires a party moving to amend a pleading to file with the motion a “redlined” copy of his proposed pleading showing the additions and deletions. Plaintiff purports to have filed a “redlined” copy of his amended complaint (Docs. 67 and 68).
Defendants respond (Doc. 69) noting the Court's prior efforts to have Plaintiff comply with Local Rule of Civil Procedure 15.1(a). (See Order 1/29/21, Doc. 46; Order 3/11/21, Doc. 60.) They argue that although Plaintiff purported to be adding new defendants, he instead has modified dismissed claims against existing defendants, in an attempt to cure deficiencies on screening, and instead of identifying the changes Plaintiff has simply designated the counts wholesale as new. They argue the motion should be denied for failure to comply with LRCiv 15.1(a) and failure to comply with the Court's order.
Plaintiff has replied (Doc. 71) apparently arguing that he is attempting to cure the deficiencies in the First Amended Complaint, and treated the dismissed counts as non-existent, and thus identified them as entirely new.
While Plaintiff's approach is not without logic, it fails to appreciate that the purpose of Local Rule of Civil Procedure 15.1 is to assist the Court and other parties in identifying specific changes being made to the prior pleading. In light of the screening obligation, that requirement is particularly important in helping the Court identify changes being made to cure deficiencies identified on screening. Plaintiff's approach makes his redlined version useless for that purpose. Even so, Plaintiff's failure to comply with Rule 15.1 appears to flow from ignorance not obstinance or bad faith. Accordingly, the Court will not reject his motion to amend on that basis.
Here, there appears no basis to find bad faith, undue delay, or prejudice. Plaintiff appears to be attempting, in good faith, to correct deficiencies revealed in the screening Order, and no defendant has yet appeared who might suffer prejudice. Accordingly, only the last two factors are relevant, futility and prior amendments.
“Repeated failure to cure deficiencies by amendments previously allowed is another valid reason for a district court to deny a party leave to amend.” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809-10 (9th Cir. 1988) (emphasis added). The current amended complaint has been proceeded by only one “allowed” amendment, namely the First Amended Complaint, which was allowed after dismissal of the original Complaint with leave to amend.
“Futility alone can justify the denial of a motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995). Futility can be legal or factual in nature. “Where the legal basis for a cause of action is tenuous, futility supports the refusal to grant leave to amend.” Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). However, leave to amend should be denied as futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense. Barahona v. Union Pac. R.R. Co., 881 F.3d 1122, 1134 (9th Cir. 2018).
For the reasons discussed hereinafter, the Court concludes that upon screening, the filing of the proposed amendment would be futile.
Accordingly, the undersigned recommends the motion to amend be denied.
In cases filed by persons appearing in forma pauperis the court is required by 28 U.S.C. § 1915(e)(2) to dismiss cases that are frivolous, malicious, fail to adequately state a...
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