United States District Court, D. Utah, Central Division
D. BRUCE OLIVER, Plaintiff,
DEPUTY LARRY G. NIELSON, DEPUTY BRENT E. PETERS, DEPUTY KEVIN P. FIELDING, DEPUTY M. DAVIS, DEPUTY ALAN BLACK, JOHN DOES 1-10, Defendants.
N. Parrish, Judge
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S
MOTION TO AMEND SECOND AMENDED COMPLAINT AND GRANTING
DEFENDANTS' MOTION TO DISMISS
C. Wells United States Magistrate Judge
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,  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.
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,
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,
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.)
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.)
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.)
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.
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.)
MOTION TO AMEND
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.” The Rule specifies that the court
“should freely give leave when justice so
requires.” “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.'”“Refusing leave to amend is
generally only justified upon a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory