United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION TO AMEND COMPLAINT AND OTHER
Richard Creatura United States Magistrate Judge.
a civil rights action brought under 42 U.S.C. § 1983.
This matter is before the Court on plaintiff's motion to
amend his complaint and miscellaneous discovery-related
motions, as well as certain defendants' motion to stay
discovery. See Dkts. 24, 25, 31, 32, 33, 35.
leave to amend should be granted freely and there is no
showing of undue prejudice or the other factors counseling
against granting leave to amend, plaintiff's motion to
amend his complaint is granted. Because plaintiff has not
included a certification that he met and conferred with the
opposing parties before filing his discovery-related motions,
they are denied. Because the Court “must issue” a
subpoena on a party's request, the Clerk's Office is
directed to issue the subpoena requested by plaintiff to
depose a third-party witness. Finally, because the motions to
dismiss are moot and the motion to amend is granted, the
motion to stay discovery pending the resolution of the
motions to dismiss and the motion to amend is denied.
brought suit in June 2019, alleging deliberate indifference
in violation of the Constitution by a prosecutor who ordered
him transported in “inhuman[e]” conditions, the
company that transported plaintiff to Washington State before
his conviction, and Kitsap County and Kitsap County
“Sheriff Jail” for his ensuing 18-month
incarceration. See Dkt. 6, at 1-8.
October 2019, after plaintiff raised additional claims to
those in his complaint in his response to a motion to
dismiss, the Court ordered plaintiff to file a motion to
amend if he wished to amend his complaint. See Dkt.
27. Plaintiff filed the pending motion to amend his
complaint, including his proposed first amended complaint.
See Dkt. 31. Plaintiff's proposed complaint
identifies the same four defendants as his original complaint
and includes his claim of deliberate indifference related to
his conditions of transport. See Dkt. 31-1, at 5. In
addition, plaintiff includes new allegations under 42 U.S.C.
§ 1985(2) and (3) for obstruction of justice and
conspiracy to interfere with civil rights and 42 U.S.C.
§ 1986 for neglect to prevent conspiracy by all
defendants. See Dkt. 31-1, at 6. Plaintiff also
includes new claims of prosecutorial misconduct and malicious
prosecution against defendant George, the prosecutor.
See Dkt. 31-1, at 7. In addition to requesting
monetary damages, plaintiff requests that the Court vacate
“with prejudice” his conviction and sentence on
the basis of alleged constitutional violations. See
Dkt. 31-1, at 18.
has also filed pending discovery-related motions, including a
motion for the Court to subpoena a third-party witness.
See Dkts. 24, 25, 32, 33. Defendants have filed
responses to these motions, and the matters are ripe for
decision. Defendants have also requested that discovery be
stayed pending resolution of the motions to dismiss and
motion to amend. See Dkt. 35.
Motion for Leave to Amend Complaint
to amend a complaint should be “freely” granted
“when justice so requires.” Fed.R.Civ.P.
15(a)(2). However, leave to amend is not automatically
granted. Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1087 (9th Cir. 2002). The Court considers five factors
in assessing a motion for leave to amend: (1) bad faith, (2)
undue delay, (3) prejudice to the opposing party, (4)
futility of the amendment, and (5) any previous amendments to
the complaint. See Johnson v. Buckley, 356 F.3d
1067, 1077 (9th Cir. 2004). Prejudice to the opposing party
carries the greatest weight. See Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The
party opposing amendment bears the burden of showing
prejudice. DCD Programs, LTD. v. Leighton, 833 F.2d
183, 187 (9th Cir. 1987).
reviewing the parties' filings, the court finds no bad
faith on the part of plaintiff in seeking leave to file his
first amended complaint. Indeed, the Court offered
plaintiff-who is pro se-the opportunity to move to
amend his complaint after he attempted to raise new legal
arguments in his response to a motion to dismiss. Nor does
the Court find undue delay, futility, or prejudice. Notably,
not one defendant has filed an opposition to plaintiff's
motion to amend his complaint-despite that the Ninth Circuit
has held that defendants under these circumstances bear the
burden to show prejudice from the amendment. Although
defendants have filed motions to dismiss pertaining to the
deliberate indifference claims, the Court finds that adding
additional claims at this early stage does not create
significant prejudice to the opposing parties.
the Court grants plaintiff's motion for leave to amend
his complaint. The proposed first amended complaint shall be
docketed as the operative complaint in this matter.
See Dkt. 31-1.
“Rule 37(a) Motion for an Order Compelling Defendants
to Disclose, ” “Motion to Disclose in accordance
with [Rules] 26(b) and 34(a)(1)(A), ” and “Motion