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Oliver v. Larry

United States District Court, D. Utah, Central Division

March 6, 2018

D. BRUCE OLIVER, Plaintiff,
v.
DEPUTY LARRY G. NIELSON, DEPUTY BRENT E. PETERS, DEPUTY KEVIN P. FIELDING, DEPUTY M. DAVIS, DEPUTY ALAN BLACK, JOHN DOES 1-10, Defendants.

          Jill N. Parrish, Judge

          REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION TO AMEND SECOND AMENDED COMPLAINT AND GRANTING DEFENDANTS' MOTION TO DISMISS

          Brooke C. Wells United States Magistrate Judge

         Plaintiff D. Bruce Oliver (Mr. Oliver), pro se, moves the court for leave to amend his Second Amended Complaint past the amendment deadline. (ECF No. 28.) Defendants move the court to dismiss the Second Amended Complaint on behalf of the following defendants: Deputy Larry G. Nielson, [1] Sheriff Todd Richardson, Deputy Brent Peters, Deputy Kevin Fielding, Davis County Sheriff's Office, Davis County Jail and Davis County (collectively Defendants). (ECF No. 31.) This matter is referred to the undersigned in accordance with 28 U.S.C. 636(b)(1)(B) by Judge Jill N. Parrish. (ECF No. 6.) The court finds the papers filed by the parties sufficient and thus no hearing for either motion is necessary.

         BACKGROUND

         This action is based on alleged violations of 42 U.S.C. §1983. On June 27, 2016, Mr. Oliver commenced this action in the Second District Court for Davis County. (ECF No. 2-1, at 2-9.) Mr. Oliver filed a First Amended Complaint in September 2016. (ECF No. 2-1, at 18-23.)

         Defendants proceed to remove the action to this court in October 2016, and filed an Answer and a Motion for Judgment on the Pleadings. (See ECF Nos. 2, 3 and 7, respectively.)

         On June 6, 2017, this court issued a Report and Recommendation on Defendants' Motion for Judgment on the Pleadings (R&R). (ECF No. 13.) In that R&R this court recommended as follows: (1) all claims against Davis County Jail, Davis County Sheriff's Office, Davis County and Sheriff Richardson be dismissed; (2) the First Cause of Action against Deputy Fielding and Deputy Peters be dismissed; (3) Mr. Oliver be allowed to amend his original Complaint to add a reference to 42 U.S.C. §1983 to the Second Cause of Action; and (4) Mr. Oliver's Third Cause of Action for injunctive relief be dismissed. (See id. at 8-9) After the time to object had expired, Judge Parrish reviewed the R&R and issued an Order adopting this court's recommendations in full on July 31, 2017 (July Order). (ECF No. 16.) A month later, the court issued a Scheduling Order and Order Vacating Hearing setting the final day to file motions to amend pleadings on November 28, 2017, and close of fact discovery of April 28, 2018. (ECF No. 20.)

         On August 18, 2017, Mr. Oliver filed a Second Amended Complaint adding the reference to 42 U.S.C §1983 to the Second Cause of Action, however, the causes of actions and/or parties dismissed from the lawsuit pursuant to Judge Parrish's July Order were not removed. See ECF No. 19. On the same day Mr. Oliver also filed a Motion to Amend Complaint Pursuant to Rule 15 and Motion to Alter or Amend Judgment Pursuant to Rule 59, arguing he had not received a copy of the R&R and thus requesting he be allowed to modify the complaint to more accurately reflect the allegations in his Notice of Claim; he also claimed the R&R did not accurately reflect the facts alleged in the Notice of Claim. (ECF No. 18.) A proposed amended complaint was not attached to the motion. Notably, the undated Notice of Claim does not contain factual allegations or any references of unreasonably long detention, violation of freedom of speech or violation of freedom of assembly. (ECF No. 18 at 5.)

         The court issued a new R&R recommending denial of both of Mr. Oliver's requests. (ECF No. 24.) After the time for objections had passed, Judge Parrish issued a new Order adopting the recommendations of the new R&R in full (ECF No. 26.)

         On December 11, 2017, Mr. Oliver filed a motion to amend the second amended complaint, this time with an attached proposed complaint. (ECF No. 28.) Mr. Oliver claims the proposed amended complaint “fleshes out the pattern of conduct which gives rise to the allegations contained in Plaintiff's Second Cause of Action.” Id. at 4. The proposed amended complaint adds about 29 new paragraphs. (ECF 28-1; see ¶¶23-29, 34-37, 42-59.) Specifically, in the First Cause of Action, Mr. Oliver has added three new constitutional theories of liability: unreasonably long detention, violation of freedom of speech and violation of freedom of assembly. Id. at ¶¶34-6. Mr. Oliver also seeks to add numerous factual allegations to identify a cash card policy and/or custom and to allege causation. Id. at ¶¶ 23-9, 42-59. Notably, the practice alleged in the proposed amended complaint involves the charging of rent to inmates while incarcerated, not a cash card policy and/or custom. Id. at ¶54.

         Defendants oppose the motion to amend on grounds of futility and untimeliness. (ECF No. 29.) Defendants also ask the court to dismiss the Second Amended Complaint as it contains claims and parties that have already been dismissed. (ECF No. 31.)

         DISCUSSION

         I. MOTION TO AMEND

         Federal Rule 15(a)(2) provides that a party may amend its pleading “only by leave of court or by written consent of the adverse party.”[2] The Rule specifies that the court “should freely give leave when justice so requires.”[3] “The district court has ‘wide discretion to recognize a motion for leave to amend in the interest of a just, fair or early resolution of litigation.'”[4]‚ÄúRefusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory ...


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