Porter v. Jennings et al
Filing
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ORDER DENYING Motion for Leave to Amend Complaint 18 , signed by Magistrate Judge Dennis L. Beck on 11/29/11. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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SAMUEL KENNETH PORTER,
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CASE NO. 1:10-CV-01811-AWI-DLB PC
Plaintiff,
ORDER DENYING MOTION FOR LEAVE
TO AMEND COMPLAINT
v.
(DOC. 18)
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JENNINGS, et al.,
Defendants.
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Plaintiff Samuel Kenneth Porter (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding
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on Plaintiff’s first amended complaint against Defendants Jennings, Lowe, and Darlene for
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violation of the Eighth Amendment. Pending before the Court is Plaintiff’s motion to amend his
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pleadings, filed June 21, 2011. Doc. 17. The matter is submitted pursuant to Local Rule 230(l).
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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)
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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the
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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
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delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is
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insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan,
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Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th
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Cir. 1999)). However, “‘[w]here the party seeking amendment knows or should know of the
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facts upon which the proposed amendment is based but fails to include them in the original
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complaint, the motion to amend may be denied,’” E.E.O.C. v. Boeing, Co., 843 F.2d 1213, 1222
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(9th Cir. 1988) (quoting Jordan v. County of L.A., 669 F.2d 1311, 1324 (9th Cir. 1982),
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vacated on other grounds, 459 U.S. 810 (1982)), and the “court’s discretion to
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deny leave to amend is particularly broad where the court has already given the plaintiff an
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opportunity to amend his complaint,” Fidelity Financial Corp. v. Federal Home Loan Bank of
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San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986).
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Plaintiff seeks leave to amend to include the CDCR’s internal affairs (“CDCR IA”). Pl.’s
Mot. 1. Plaintiff contends that the CDCR IA conducted an investigation on July 22, 2009 into
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Plaintiff’s allegations in his first amended complaint. Id. at 2. Plaintiff alleges that the
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investigation conducted after July 31, 2010 was a farce, since they claimed that no evidence
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existed to support Plaintiff’s claims. Id. Plaintiff alleges a violation of 42 U.S.C. § 15602. Id. at
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3.
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Plaintiff’s motion is denied. Plaintiff seeks leave to amend to include CDCR as a
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Defendant. First, CDCR is entitled to Eleventh Amendment immunity. The Eleventh
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Amendment bars § 1983 actions against state agencies. Lucas v. Dep’t of Corr., 66 F.3d 245,
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248 (9th Cir. 1995) (per curiam).
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Second, there is no cause of action pursuant to 42 U.S.C. § 15602. Section 15602, also
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known as the Prison Rape Elimination Act, authorizes the reporting of incidents of rape in
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prison, allocation of grants, and creation of a study commission. It does not, however, give rise
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to a private cause of action. See, e.g., McNaughton v. Arpaio, No. CV 10-1250-PHX-DGC
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(LOA), 2010 U.S. Dist. LEXIS 85033, at *6-7 (D. Ariz. July 21, 2010); Bell v. County of L.A.,
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No. CV07-8187-GW(E), 2008 U.S. Dist. LEXIS 74763, 2008 WL 4375768, at *6 (C.D. Cal.
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Aug 25, 2008); LeMasters v. Fabian, Civil No. 09-702 DSD/AJB, 2009 U.S. Dist. LEXIS 53016,
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2009 WL 1405176, at *2 (D. Minn. May 18, 2009); Rindahl v. Weber, No. CIV. 08-4041-RHB,
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2008 U.S. Dist. LEXIS 105792, 2008 WL 5448232, at *1 (D.S.D. Dec.31, 2008); see also
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Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (particular statutory provision gives rise to a
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federal right enforceable under § 1983 only where the statute “unambiguously imposed a binding
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obligation on the States” by couching pertinent statutory requirements “in mandatory, rather than
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precatory, terms”).
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Plaintiff’s motion to amend is futile. AmerisourceBergen Corp., 445 F.3d at 1136.
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Accordingly, it is HEREBY ORDERED that Plaintiff’s motion to amend, filed June 21, 2011, is
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DENIED.
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IT IS SO ORDERED.
Dated:
3b142a
November 29, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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