Opinion
No. CV-04-2845-PHX-DGC (MEA).
March 27, 2007
ORDER
On December 19, 2006, the Court issued an order denying Plaintiff leave to amend his complaint. Dkt. #28. Plaintiff has filed a motion for reconsideration of that order. Dkt. #29. Defendant Arpaio has filed a response to Plaintiff's motion. Dkt. #38. For the reasons set forth below, the Court will grant the motion.
I. Background.
Plaintiff is a prisoner currently confined at the Arizona State Prison in Florence, Arizona. Beginning in May 2004, Plaintiff was detained on various criminal charges at a Maricopa County jail known as "Towers Jail." Plaintiff commenced this suit on December 9, 2004 by filing a pro se complaint under 42 U.S.C. § 1983 against Towers Jail, the Maricopa County Sheriff's Office ("MCSO"), and Sheriff Joseph Arpaio. Dkt. #1. The complaint alleges violations of Plaintiff's Eighth Amendment rights based on overcrowded and unsanitary conditions at Towers Jail and a denial of Plaintiff's medically necessary diet. Id.
On October 14, 2005, the Court ordered Sheriff Arpaio to answer the complaint. The Court dismissed Towers Jail and the MCSO because they are non-jural entities. Dkt. #4.
On September 22, 2006, Plaintiff filed a motion to amend the complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. Dkt. #22. Plaintiff sought to add claims under the Fourteenth Amendment and to add as defendants the members of the Maricopa County Board of Supervisors. See Dkt. #24. Plaintiff asserted in his motion that he was seeking to amend the complaint in good faith and that Defendant Arpaio would not be prejudiced by the amendment. Dkt. #22 at 2-3. Defendant Arpaio did not oppose the motion.
The Board members are Fulton Brock, Don Stapely, Andrew Kunasek, Max Wilson, and Mary Rose Garrido-Wilcox. Dkt. #24 ¶ 2.
In its December 19 order, the Court denied Plaintiff leave to amend the complaint to add Fourteenth Amendment claims because the addition of the claims would have been futile. Dkt. #28 at 2-3. With respect to the proposed Eighth Amendment claims against the Board members, the Court concluded that Plaintiff's allegations were sufficient to state § 1983 claims against the Board members in their official capacities. Id. at 3-4. The Court, however, denied Plaintiff leave to amend to add the Board members as defendants on the ground that Plaintiff had delayed unduly in seeking to amend the complaint. Id. at 5. Plaintiff asks the Court to reconsider this ruling. Dkt. #29.
The Court noted that this ruling was not prejudicial to Plaintiff because the "deliberate indifference" standard applies to his claims whether they are brought under the Eighth Amendment or the Fourteenth Amendment. Id. at 3 n. 2 (citations omitted).
II. Analysis.
This Circuit has made clear that "`undue delay by itself is insufficient to justify denying a motion to amend.'" Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712-13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 757, 758 (9th Cir. 1999)); see DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1983) (same). "`Only where prejudice is shown or the movant acts in bad faith are courts protecting the judicial system or other litigants when they deny leave to amend a pleading.'" United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981) (quoting Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973)); see Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) ("Prejudice is the `touchstone of the inquiry under rule 15(a).'") (citation omitted).
A. Prejudice.
Defendant Arpaio contends that he will be prejudiced if Plaintiff is granted leave to amend because Plaintiff has included new facts in the amended complaint and the deadline for deposing Plaintiff has passed. Dkt. #38 at 4. Defendant further contends that he will be prejudiced if the discovery deadline is extended because it will cause undue delay in getting this matter resolved. Id.
Defendant does not identify the new facts alleged in the amended complaint or assert that they are material to the claims against him, stating only that he "may or may not want to depose Plaintiff on [the] new facts[.]" Id. Nor does Defendant explain why the delay caused by allowing Plaintiff to add the Board members as defendants would be prejudicial to Defendant. Defendant himself has recently sought a three-month extension of certain pretrial deadlines, arguing in part that an extension of the deadlines would not unduly delay the case or prejudice the parties. See Dkt. #32.
"The party opposing amendment bears the burden of showing prejudice." DCD Programs, 833 F.2d at 187. In this case, Defendant Arpaio merely asserts, in conclusory fashion, that he would be prejudiced by the proposed amendment. The Court concludes that Defendant has not demonstrated prejudice sufficient to deny Plaintiff leave to amend.
B. Bad Faith.
Defendant relies on Aloe Vera of America, Inc. v. United States, 233 F.R.D. 532 (D. Ariz. 2005), for the proposition that a plaintiff acts in bad faith when he seeks to amend his complaint after depositions have been completed without discovering any new facts. Dkt. #38 at 4. Defendant argues that Plaintiff in this case, like the plaintiff in Aloe Vera, has acted in bad faith because he filed his motion to amend the complaint on the deadline for completing depositions without gathering any new evidence during discovery that would justify adding the Board members as defendants. Id. at 5.
The Court cannot conclude on the record before it that Plaintiff has acted in bad faith in seeking to amend the complaint in September 2006. Plaintiff's motion to amend was filed within the period of time set forth in the Rule 16 scheduling order. See Dkt. #17 ¶ 3. Plaintiff has not previously filed or sought leave to file an amended complaint. See DCD Programs, 833 F.2d at 186 n. 3 (stating that whether the plaintiff has previously amended his complaint is another factor courts may consider in ruling on a motion to amend). Plaintiff has filed a declaration explaining that as an incarcerated pro se litigant, it was difficult for him to determine that he could assert a § 1983 claim against the Board members under the theory of municipal liability. Dkt. #29, Ex. B ¶¶ 5-6. Plaintiff states that he immediately sought leave to amend once he learned of the existence of the additional claims. Id. ¶ 7.
Defendant's reliance on Aloe Vera is misplaced. In Aloe Vera, the plaintiffs sought to add a new claim against the defendant after the case had been pending for almost five years despite the fact that the plaintiffs were aware of the facts supporting the claim from the beginning of the case. The district court concluded that the plaintiffs had acted in bad faith because they sought to gain an unfair litigation advantage by waiting to amend their complaint until after they had taken the depositions of the defendants' witnesses. Aloe Vera, 233 F.R.D. at 535-36. There is no evidence in this case that Plaintiff's has sought to add the Board members as defendants in order to gain an unfair litigation advantage with respect to Defendant Arpaio.
C. Conclusion.
Consistent with the liberal amendment policy of Rule 15, the Court will grant Plaintiff leave to amend the complaint to add as defendants the members of the Maricopa County Board of Supervisors. See Foman v. Davis, 371 U.S. 178, 182 (1962) ("Rule 15(a) declares that leave to amend `shall be freely given when justice so requires'; this mandate is to be heeded."); Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987) ("`[A] court must be guided by the underlying purpose of Rule 15 — to facilitate decision on the merits rather than on the pleadings or technicalities. . . . Thus, `Rule 15's policy of favoring amendments to pleadings should be applied with extreme liberality.'") (citations omitted); DCD Programs, 833 F.2d at 186 ("[T]he liberality in granting leave to amend is not dependent on whether the amendment will add causes of action or parties."). The Court will vacate section II.B of its December 19, 2006 order and direct the Clerk to file the lodged proposed amended complaint. See Dkt. ##24, 28 at 3-5. The Court will dismiss Plaintiff's Fourteenth Amendment claims for the reasons set forth in section II.A of the Court's December 19 order. See Dkt. ##24 ¶¶ 31-34, 28 at 2-3.
IT IS ORDERED:
1. Plaintiff's motion for reconsideration (Dkt. #29) is granted.
2. Section II.B of the Court's December 19, 2006 order (Dkt. #28) is vacated.
3. The Clerk shall file the lodged proposed amended complaint (Dkt. #24).
4. Plaintiff's Fourteenth Amendment claims are dismissed.
5. The Clerk shall send Plaintiff service packets, including copies of the amended complaint and this order and both summonses and request for waiver forms, for Defendants Fulton Brock, Don Stapely, Andrew Kunasek, Max Wilson, and Mary Rose Garrido-Wilcox.
6. Plaintiff shall complete and return the service packets to the Clerk within 20 days of the date of filing of this order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this order.
7. If Plaintiff does not either obtain a waiver of service of the summons or complete service of the summons and complaint on each Defendant within 120 days of the filing of the amended complaint, the action may be dismissed as to each Defendant not served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and Local Rule of Civil Procedure 16.2(b)(2)(B)(i).
8. The United States Marshal shall retain the summonses, a copy of the amended complaint, and a copy of this order for future use.
9 The United States Marshal shall notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants shall include a copy of this order. The Marshal shall file waivers of service of the summonses or requests for waivers that were returned as undeliverable as soon as they are received. If a waiver of service of summons is not returned by a Defendant within thirty days from the date the request for waiver was sent by the Marshal, the Marshal shall:
a. Personally serve a copy of the summons, amended complaint, and this order upon the Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
b. Within 10 days after personal service is effected, file the return of service for the Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon the Defendant. The costs of service shall be enumerated on the return of service form (USM-285) and shall include the costs incurred by the Marshal for photocopying additional copies of the summons, amended complaint, or this order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court.
10. A Defendant who agrees to waive service of the summons and amended complaint shall return the signed waiver forms to the United States Marshal, not Plaintiff.
11. Defendants shall answer the amended complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12 of the Federal Rules of Civil Procedure.
12. The case is referred to Magistrate Judge Mark Aspey for further proceedings.