(PC) Wilkins v. Gonzalez, et al., No. 2:2016cv00347 - Document 30 (E.D. Cal. 2016)

Court Description: AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/09/16 recommending that plaintiff's motion for leave to file a third amended complaint 23 be denied. MOTION 23 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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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 KEENAN WILKINS, 12 13 14 15 No. 2: 16-cv-0347 KJM KJN P Plaintiff, v. AMENDED FINDINGS AND RECOMMENDATIONS PAUL GONZALES, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to file a third 19 amended complaint (ECF No. 23) and proposed third amended complaint (ECF No. 25). For the 20 following reasons, plaintiff’s motion for leave to file a third amended complaint should be denied. 21 Plaintiff filed the original 19 page complaint on February 18, 2016. (ECF No. 1.) 22 Plaintiff alleged that he was being denied contact visits with his minor children in violation of the 23 Eighth Amendment, his right to equal protection and due process. On March 17, 2106, the 24 undersigned dismissed the original complaint with leave to amend. (ECF No. 7.) 25 On March 25, 2016, plaintiff filed a first amended complaint, containing the same legal 26 claims as the first amended complaint. (ECF No. 10.) The first amended complaint contained 18 27 pages of legal briefing and 57 pages of exhibits. On April 4, 2016, the undersigned recommended 28 that this action be dismissed on grounds that the first amended complaint failed to state 1 1 potentially colorable claims for relief. (ECF No. 11.) 2 On April 12, 2016, plaintiff filed objections to the findings and recommendations. (ECF 3 No. 13.) In his objections, plaintiff raised a new claim alleging that prison officials were denying 4 him contact visits with his children in retaliation for his report of staff assaults. (Id.) 5 Accordingly, on June 2, 2016, the undersigned vacated the April 4, 2016 findings and 6 recommendations and granted plaintiff leave to file a second amended complaint. (ECF No. 15.) 7 On June 17, 2016, plaintiff filed a second amended complaint. (ECF No. 17.) The second 8 amended complaint contained 30 pages of legal briefing and 92 pages of exhibits. The second 9 amended complaint also named 25 defendants. 10 On August 12, 2016, the undersigned issued a 21 page order screening the second 11 amended complaint. (ECF No. 19.) The undersigned ordered service of the following claims: 12 1) defendants Jones, Vasquez and Hurtz allegedly retaliated against plaintiff for filing 13 administrative grievances regarding staff assaults against himself and other mentally ill inmates 14 by reducing his level of care from the Enhanced Outpatient Program (“EOP”); 2) defendants 15 Jones, Couch, Gonzales and Pulley allegedly retaliated against him for reporting staff assaults by 16 imposing a minor contact visitation restriction; 3) defendant Jones allegedly used excessive force 17 against plaintiff; and 4) defendants Swarthout and Chaiken allegedly failed to act after being 18 made aware of the alleged retaliation. The undersigned found that plaintiff’s remaining claims were not potentially colorable. In 19 20 particular, the undersigned separately recommended dismissal of the following claims: 1) the 21 denial of contact visits violated plaintiff’s rights to Equal Protection, Due Process and the Eighth 22 Amendment; 2) defendants Couch, Gonzales Pulley, Rasmussen, Tabayoyang, Vasquez, Hurt, 23 Vanderburg, Jones, Sims and Burnett conspired to place the minor visitation restriction on 24 plaintiff’s record in retaliation for filing grievances; 3) defendants Macomber, Baughman, 25 Lockwood, Harrington, Voong, Hemengway, Hendricks, Barretto, Lewis, Fragoso, Burkhart and 26 Burnett failed to prevent the alleged deprivations after they were made aware of them. (ECF No. 27 20.) 28 //// 2 1 In the August 12, 2016 order screening the second amended complaint, the undersigned 2 ordered that plaintiff was not granted leave to file a third amended complaint. (ECF No. 19 at 3 19.) The order stated, in relevant part, 4 The undersigned has spent considerable time reviewing the claims in the second amended complaint. For this reason, and because it appears unlikely that plaintiff can cure the defects discussed above, plaintiff is not granted leave to file a third amended complaint. Instead, the undersigned herein orders service of those claims found colorable, and separately recommends dismissal of those defendants against whom plaintiff has not stated colorable claims for relief. 5 6 7 8 9 (Id.) 10 On August 22, 2016, plaintiff filed objections to the August 12, 2016 findings and 11 recommendations recommending dismissal of those claims in the second amended complaint that 12 were not potentially colorable. (ECF No. 21.) On September 8, 2016, plaintiff filed a motion for 13 leave to file a third amended complaint. (ECF No. 23.) On September 16, 2016, plaintiff filed 14 the proposed third amended complaint. (ECF No. 25.) 15 The proposed third amended complaint contains 52 pages of legal briefing. (Id.) The 16 third amended complaint names 29 defendants, including 18 of the defendants named in the 17 second amended complaint and 11 new defendants. The proposed third amended complaint 18 includes previously dismissed claims as well as new claims. 19 Plaintiff’s motion to file the proposed third amended complaint should be denied because 20 it violates the August 12, 2016 order which clearly advised plaintiff that no further amendments 21 would be permitted. Moreover, the proposed third amended complaint violates Federal Rule of 22 Civil Procedure 8 notice requirement. Pursuant to Rule 8(a), a complaint must contain “a short 23 and plain statement of the claim showing that the pleader is entitled to relief….” Fed. R. Civ. P. 24 8(a). “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is 25 and the grounds upon which it rests.” Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002). The 26 undersigned will not expend additional judicial resources to review plaintiff’s 52 page proposed 27 third amended complaint to determine if further amendment is appropriate. As indicated above, 28 plaintiff has already been granted generous opportunities to file amended complaints. The 3 1 undersigned is also concerned that plaintiff will not cease filing amended complaints until the 2 court orders service of all named defendants as to all claims, which is unlikely to occur. 3 4 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion for leave to file a third amended complaint (ECF No. 23) be denied. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, plaintiff may file written objections 8 with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 10 failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 Dated: November 9, 2016 13 14 15 16 Wilk347.ame(4) 17 18 19 20 21 22 23 24 25 26 27 28 4

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