United States District Court, D. Hawaii
ORDER DENYING MOTION TO FILE SECOND AMENDED COMPLAINT
AND DISMISSING FIRST AMENDED COMPLAINT IN PART WITH LEAVE TO
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
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. §
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.
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.
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.
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; (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.
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.
April 3, 2018, Plaintiff served the FAC on Craig, Neeson, and
Morreira. See ECF Nos. 20-27.
29, 2018, Plaintiff filed the present Motion to file the SAC.
ECF No. 28.
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.
Federal Rule of Civil Procedure 15
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.
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). “Determining whether a complaint
states a plausible claim for ...