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Paulson v. Prisoner Transport

United States District Court, W.D. Washington, Tacoma

December 5, 2019

PRISONER TRANSPORT, et al., Defendants.


          J. Richard Creatura United States Magistrate Judge.

         This is 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.

         Because 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.


         Plaintiff 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.

         In 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.

         Plaintiff 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.


         I. Motion for Leave to Amend Complaint

         Leave 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).

         After 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.

         Therefore, 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.

         II. Discovery Motions

         A. “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 ...

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