(TEMP)(PC) Kilgore v. Grannis et al, No. 2:2011cv01745 - Document 50 (E.D. Cal. 2016)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/26/2016 ORDERING plaintiff's 41 , 47 motions for appointment of counsel are DENIED ; plaintiff's 47 motion for a court order is DENIED; defenda nts' 46 motion for an extension of time to file a motion for summary judgment is GRANTED; within 45 days of an order adopting these findings and recommendations defendants shall file any motion for summary judgment; and except otherwise prov ided in this order, the court's discovery and scheduling order remains in effect. IT IS RECOMMENDED that plaintiff's 38 motion to amend his complaint be denied. Referred to Judge Troy L. Nunley; Objections due within 14 days.(Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IVAN KILGORE, 12 Plaintiff, 13 14 No. 2:11-cv-1745 TLN KJN P (TEMP) v. ORDER AND DIRECTOR, et al., 15 FINDINGS AND RECOMMENDATIONS Defendants. 16 Plaintiff is a state prisoner, proceeding pro se, with a civil rights action seeking relief 17 18 under 42 U.S.C. § 1983. Plaintiff has filed a motion to amend, together with a proposed second 19 amended complaint. Defendants filed an opposition to the motion, and plaintiff filed a reply. 20 PLAINTIFF’S MOTION TO AMEND 21 Plaintiff is proceeding on a first amended complaint against defendants Auer, King, 22 Molina, Mawai, Okoroike, and Riggs for their alleged deliberate indifference to his medical needs 23 in violation of the Eighth Amendment. Plaintiff seeks leave to amend his complaint to add eleven 24 new defendants, including two “Doe” defendants, and to assert state law negligence claims. 25 Plaintiff explains that a discussion with defense counsel prompted him to review his first 26 amended complaint in this action, and he realized that he made the mistake of not pleading his 27 state law causes of action. (Pl.’s Mot. to Am. at 2, Pl.’s Proposed Sec. Am. Compl.) 28 //// Defendants filed an opposition to plaintiff’s motion to amend and argue that plaintiff 1 2 unduly delayed in bringing these negligence causes of actions and that defendants would suffer 3 undue prejudice if the court allows plaintiff to amend his complaint at this late date. Defendants 4 also argue that any amendment that would add state law claims to this action would be futile 5 because plaintiff did not comply with the California Torts Claims Act statute of limitations. 6 (Defs.’ Opp’n to Pl.’s Mot. to Am. at 3-6.) 7 In reply, plaintiff argues that defendants’ arguments based on prejudice are exaggerated. 8 He also contends that he is entitled to equitable tolling of any statute of limitations. (Pl.’s Reply 9 at 2-5.) 10 Rule 15(a) of the Federal Rules of Civil Procedure states that a court should grant leave to 11 amend “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, the Ninth 12 Circuit Court of Appeals has made clear that a court should not grant leave to amend 13 automatically. Zivkovic v. S. California Edison Co., 302 F.3d 1080 (9th Cir. 2002). A court 14 “may exercise its discretion to deny leave to amend due to ‘undue delay, bad faith or dilatory 15 motive on part of the movant, repeated failure to cure deficiencies by amendments previously 16 allowed, undue prejudice to the opposing party ..., [and] futility of amendment.’” Carvalho v. 17 Equifax Info. Servs.,629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in original) (quoting 18 Foman v. Davis, 371 U.S. 178, 182 (1962)). See also Gonzalez v. Planned Parenthood of Los 19 Angeles, 759 F.3d 1112, 1116 (9th Cir. 2014) (“And the district court’s discretion in denying 20 amendment is particularly broad when it has previously given leave to amend.”) (internal 21 quotations omitted). 22 In this case, the court agrees with defense counsel that plaintiff unduly delayed in bringing 23 his proposed amendments. Specifically, plaintiff filed the operative amended complaint in this 24 action on September 13, 2013. Plaintiff delayed filing the pending motion to amend until May 25 15, 2015. In his motion, plaintiff contends that he intended to plead his state law claims, but he 26 offers no explanation as to why he delayed nearly two years to file his proposed amendments, 27 particularly when he bases his negligence claims on many of the same facts he alleges in support 28 of his Eighth Amendment deliberate indifference claims. Allen v. City of Beverly Hills, 911 F.2d 2 1 367, 374 (9th Cir. 1990) (“a district court does not ‘abuse its discretion in denying a motion to 2 amend a complaint . . . when the movant presented no new facts but only ‘new theories’ and 3 ‘provided no satisfactory explanation for his failure to fully develop his contentions originally’”). 4 The court also agrees with defense counsel that defendants would suffer undue prejudice 5 if the court allowed plaintiff to amend his complaint at this late date. According to the court’s 6 discovery and scheduling order, the parties needed to complete discovery on or before April 3, 7 2015. Plaintiff filed his motion to amend more than a month after discovery had closed in this 8 case. As noted above, in plaintiff’s proposed second amended complaint, plaintiff seeks to add 9 eleven new defendants, including two “Doe” defendants, and to assert state law negligence 10 claims. Where, as here, plaintiff has failed to explain his lack of diligence in bringing the 11 proposed amendments, and the proposed amendments would require re-opening discovery and a 12 considerable delay of these proceedings, the court finds that defendants would suffer undue 13 prejudice. Zikovic, 302 F.3d at 1087 (district court did not abuse its discretion in denying motion 14 to amend where additional causes of action would have required the parties to engage in further 15 discovery and discovery was set to close five days after the motion to amend was filed); see also 16 Lamon v. Ellis, 584 F.App’x 514, 516 (9th Cir. 2014) (district court did not abuse its discretion in 17 denying prisoner-plaintiff’s motion to amend, which would have caused undue delay and 18 unnecessary prejudice); Fausett v. LeBlanc, 553 F.App’x 665, 667 (9th Cir. 2014) (district court 19 did not abuse its discretion in denying prisoner-plaintiff’s motion to amend, which he filed after 20 discovery had closed). 21 Accordingly, for all of the foregoing reasons, the court recommends denying plaintiff’s 22 motion to amend. The court declines to address defendants’ alternative argument concerning 23 plaintiff’s compliance with the California Tort Claims Act. 24 25 OTHER MATTERS Plaintiff also filed two requests for appointment of counsel. Plaintiff contends that he 26 needs counsel because he is not a lawyer and has limited ability to elicit necessary facts and 27 articulate legal claims. The court sympathizes with these challenges. However, district courts 28 lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. 3 1 United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may 2 request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell 3 v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 4 (9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must 5 consider plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to 6 articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. 7 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to 8 appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. 9 Having considered the factors under Palmer, the court finds that plaintiff has failed to 10 meet his burden of demonstrating exceptional circumstances warranting the appointment of 11 counsel at this time. Accordingly, the court denies plaintiff’s motions for appointment of 12 counsel.1 13 Finally, defendants filed a request for an extension of time to file a motion for summary 14 judgment. Good cause appearing, the court grants defendants’ request and directs defendants to 15 file any motion for summary judgment within forty-five days of any order adopting the findings 16 and recommendations herein. 17 CONCLUSION 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. Plaintiff’s motions for appointment of counsel (Doc. Nos. 41 & 47) are denied; 20 2. Plaintiff’s motion for a court order (Doc. No. 47) is denied; 21 22 23 24 25 26 27 28 1 In one of his motions for appointment of counsel, plaintiff also requests a court order directing prison officials to relinquish his legal property. As an initial matter, not long after plaintiff filed his motion, he filed a notice of change of address indicating that he recently moved from CSPSacramento to Salinas Valley State Prison where he is presently incarcerated. In this regard, insofar as plaintiff’s motion could be construed as a motion for preliminary injunctive relief, plaintiff is no longer subject to the alleged conditions he complained of at CSP-Sacramento, so any request for a court order providing immediate relief is now moot. Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007) (citing Johnson v. Moore, 948 F.2d 517, 510 (9th Cir. 1991) (per curiam)). In any case, at this time there are no motions pending before the court that require a response from plaintiff, so there is insufficient reason for this court to interfere with the day-today operations of plaintiff’s prison. Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981) (courts should “avoid enmeshing themselves in the minutiae of prison operations”). Accordingly, the court will deny plaintiff’s motion for a court order. 4 1 2 3 4 5 6 7 8 3. Defendants’ motion for an extension of time to file a motion for summary judgment (Doc. No. 46) is granted; 4. Within forty-five days of an order adopting these findings and recommendations, defendants shall file any motion for summary judgment; and 5. Except as otherwise provided in this order, the court’s discovery and scheduling order remains in effect. IT IS HEREBY RECOMMENDED that plaintiff’s motion to amend his complaint (Doc. No. 38) be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within seven days after service of the objections. The parties 15 are advised that failure to file objections within the specified time may waive the right to appeal 16 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: February 26, 2016 18 19 20 21 kilg1745.mta 22 23 24 25 26 27 28 5

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