United States District Court, W.D. Washington, Seattle
JOE J.W. ROBERTS, JR., Plaintiff,
VILMA KHOUNPHIXAY, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO STRIKE AND
DENYING PLAINTIFF'S MOTION TO AMEND
Michelle L. Peterson United States Magistrate Judge.
Joe Roberts is a state prisoner who is proceeding with this
civil rights action pro se and in forma
pauperis. This matter comes before the Court at the
present time on Defendants' motion to strike
Plaintiff's amended complaint and on Plaintiff's
motion for leave to amend. (Dkt. ## 34, 42.) Plaintiff has
filed a brief opposing Defendants' motion to strike (dkt.
# 39), and Defendants have filed a brief opposing
Plaintiff's motion to amend (dkt. # 43). The Court
addresses each of these motions below.
Defendants' Motion to Strike Amended Complaint
assert in the instant motion that Plaintiff's amended
complaint, which was submitted to the Court for filing on
June 11, 2019, should be stricken, and they identify two
bases for their motion. (See Dkt. # 34.) First,
Defendants argue that Plaintiff's amended complaint is
procedurally deficient because Plaintiff failed to comply
with Rule 15(a)(2) of the Federal Rules of Civil Procedure
and with Local Civil Rule (“LCR”) 15.
(Id. at 3.) Second, Defendants argue that even if
the Court finds no procedural errors in Plaintiff's
submission, the Court should not permit Plaintiff to amend
because amendment would be futile. (See id. at 3-6.)
Compliance with Fed.R.Civ.P. 15(a)(2) and LCR 15
to Fed.R.Civ.P. 15(a)(1), a party is permitted to amend its
pleading once as a matter of course within specified time
periods. As relevant here, Plaintiff had 21 days from the
date Defendants filed their answer to Plaintiff's
original complaint, or until approximately May 21, 2019, to
freely amend his pleading. See Fed. R. Civ. P.
15(a)(1)(B). Because Plaintiff did not submit his amended
complaint to the Court for filing until June 11, 2019, he was
required to obtain written consent from Defendants or seek
the Court's permission to amend. See Fed. R.
Civ. P. 15(a)(2). The record makes clear that Plaintiff did
neither of these things. (See Dkt. # 35 (Decl. of
Michelle Hansen) at ¶¶ 4, 5.)
also failed to comply with LCR 15 which requires that a party
seeking to amend a pleading indicate on the amended pleading
how it differs from the pleading it amends. Plaintiff states
in a preface to his amended complaint that his intention is
to add two Defendants to this action, Monroe Correctional
Complex (“MCC”) Grievance Coordinator Pete
Maxson, and MCC Associate Superintendent Lisa Anderson and he
identifies in a general sense the changes contained within
his amended complaint. (See Dkt. 33 at 1.) However,
this general overview is insufficient to comply with the
requirements of LCR 15.
the record makes clear that Plaintiff failed to comply with
the requirements of Fed.R.Civ.P. 15(a) and LCR 15 in filing
his amended complaint, the pleading is not properly before
Futility of Amendment
Court deems it appropriate, despite the procedural
deficiencies discussed above, to briefly address
Defendants' substantive argument pertaining to the
proposed amended complaint. Rule 15(a)(2) of the Federal
Rules of Civil Procedure provides that the court should
freely give leave to amend “when justice so
requires.” Five factors are typically considered when
assessing the propriety of a motion for leave to amend: (1)
bad faith; (2) undue delay; (3) prejudice to the opposing
party; (4) futility of amendment; and (5) whether the
plaintiff has previously amended his complaint. Johnson
v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004).
Defendants argue that it would be futile for Plaintiff to
pursue claims against Associate Superintendent Anderson and
Grievance Coordinator Maxson. An amendment to a complaint is
futile when “no set of facts can be proved under the
amendment to the pleadings that would constitute a valid and
sufficient claim or defense.” Missouri ex. Rel.
Koster v. Harris, 847 F.3d 646, 656 (9th Cir. 2017)
(citing Miller v. Rykoff-Sexton, Inc., 845 F.2d 209,
214 (9th Cir. 1988), overruled on other ground by
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
order to sustain a civil rights action under § 1983, a
plaintiff must show (1) that he suffered a violation of
rights protected by the Constitution or created by federal
statute, and (2) that the violation was proximately caused by
a person acting under color of state law. See Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy
the second prong, a plaintiff must allege facts showing how
individually named defendants caused, or personally
participated in causing, the harm alleged in the complaint.
See Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir.
1981). A defendant cannot be held liable solely on the basis
of supervisory responsibility or position. Monell v.
Department of Social Servs., of City of New York, 436
U.S. 658, 691-694 (1978). Rather, a plaintiff must allege
that a defendant's own conduct violated the
plaintiff's civil rights. City of Canton, Ohio v.
Harris, 489 U.S. 378, 385-90 (1989).
correctly note, with respect to Associate Superintendent
Anderson, that Plaintiff by and large simply adds Ms.
Anderson to existing allegations asserted against other
Defendants. He alleges no specific facts demonstrating that
Ms. Anderson personally participated in causing him any harm
of federal constitutional dimension. With respect to
Grievance Coordinator Maxson, Plaintiff appears to complain
about the manner in which Mr. Maxson processed, or failed to
process, Plaintiff's grievances through the Washington
Department of Corrections' Offender Grievance Program.
The Ninth Circuit has made clear that a prisoner plaintiff
does not have a constitutional right to a grievance process,
and therefore any claim alleging deficiencies in the
grievance process fails to state a claim for relief under
§ 1983. See Ramirez v. Galaza, 334 F.3d 850,
860 (9th Cir. 2003) (finding a prisoner did not have a claim
for a loss of liberty regarding the processing of his
grievances because inmates lack a separate constitutional
entitlement to a specific grievance procedure); Mann v.
Adams, 855 F.2d 639, 640 (9th Cir. 1988) (a ...