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Gordon v. Sequeira

United States District Court, D. Hawaii

June 7, 2018

SCOTT GORDON, #A1080674, Plaintiff,
FRANCIS SEQUEIRA, et al., Defendants.



         Before the Court is Plaintiff's Motion for Leave to File an Amended Complaint (“Motion”) and proposed Second Amended Complaint (“SAC”). ECF Nos. 28, 28-1. The SAC clarifies that Defendants Halawa Correctional Facility (“HCF”) counselor Paul Neeson, physician Thomas Craig, III, M.D., unit team manager Keoni Morreira, and classification custody officers Does 1 and 2 are named in their individual capacities and requests the court take supplemental jurisdiction over Plaintiff's state negligence claims pursuant to 28 U.S.C. § 1367.[1]

         The SAC omits previously alleged facts that supported Plaintiff's claims against Defendants Craig and Morreira. Consequently, if the SAC is permitted to be filed, these claims are subject to dismissal for Plaintiff's failure to state a claim. Plaintiff's Motion is therefore DENIED.

         Further, on closer review of the operative March 20, 2018 First Amended Complaint (“FAC”), ECF No. 14, it is clear that Plaintiff fails to state a claim against Defendants Craig and Morreira without reference to his original Complaint and these claims must be DISMISSED. Plaintiff is therefore DIRECTED to submit an amended complaint on the court's prisoner civil rights complaint form that explicitly sets forth all of the facts that support his federal civil rights and state negligence claims as alleged against Defendants Neeson, Craig, Morreira, and Does 1 and 2 in their individual capacities. Plaintiff shall file the amended pleading on or before June 21, 2018.

         I. Background

         Plaintiff has filed four pleadings in this action, with varying degrees of detail. See ECF Nos. 1, 8, 14, and 28-1. Plaintiff first failed to sign the original Complaint and the court instructed him to sign and submit another pleading. See Ord., ECF No. 7. Plaintiff did so on January 5, 2018. Am. Compl., ECF No. 8.

         On January 24, 2018, the court screened the amended Complaint pursuant to 28 U.S.C. § 1915A and dismissed Plaintiff's claims: (1) for damages against all Defendants named in their official capacities; (2) as asserted under the Eighth Amendment, because it appeared that Plaintiff was a pretrial detainee;[2] (3) for retaliation under the First Amendment; (4) alleging assault and battery under state law; and (5) against Defendants HCF Warden Francis Sequeira, Administrator Shari Kimoto, and Does 1-10. The court held that Plaintiff stated a claim against Defendants Craig, Neeson, Gary Kaplan, and Morreira in their individual capacities and granted him leave to file an amended pleading to cure the deficiencies in those claims dismissed without prejudice. See Ord., ECF No. 9.

         On March 20, 2018, Plaintiff filed the FAC, realleging claims against Does 1-4, Sequeira, Neeson, Craig, Kaplan, and Morreira. FAC, ECF No. 14. On April 3, 2018, the court dismissed the FAC in part and directed service on Defendants Craig, Neeson, Morreira, and Doe Defendants 1 and 2. Ord., ECF No. 15.

         On April 3, 2018, Plaintiff served the FAC on Craig, Neeson, and Morreira. See ECF Nos. 20-27.

         On May 29, 2018, Plaintiff filed the present Motion to file the SAC. ECF No. 28.

         On June 1, 2018, Morreira and Neeson filed their Answer. ECF No. 29. Dr. Craig has not answered the FAC, and Plaintiff has not identified Does 1 and 2.

         II. Federal Rule of Civil Procedure 15

         Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure (“FRCP”), “a party may amend its pleading only with the opposing party's written consent or the court's leave.” Rule 15(a)(2) advises, “[t]he court should freely give leave when justice so requires.” In ruling on a motion for leave to amend, courts consider: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the plaintiff has previously amended their complaint. Futility alone can justify denying leave to amend. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).

         For purposes of assessing futility, the legal standard is the same as it would be on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). ‚ÄúDetermining whether a complaint states a plausible claim for ...

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