Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6

IN THE UNITED STATES DISTRICT COURT
7

FOR THE DISTRICT OF ARIZONA
8 9 10 11 12 13 14

Albert W. DeLeon,

) ) Plaintiff, ) ) vs. ) ) Dora Schriro, et al., ) ) Defendants. ) ______________________________)

CV 04-446-PHX-PGR (MS)

REPORT AND RECOMMENDATION

Before the Court is Plaintiff's "Motion to Take Leave/File Supplemental Pleading"
15

filed August 26, 2005. The Court recently denied a similar motion, indicating to Plaintiff
16

that unless he can demonstrate to the Court that he only recently discovered the alleged
17

injury (bulging disc), the Court would recommend that the supplement to the Second
18

Amended Complaint be denied as untimely. [Doc. # 155].
19

The Court is required to screen complaints brought by prisoners seeking relief
20

against a governmental entity or officer or employee of a governmental entity. 28
21

U.S.C. §1915A(a). The Court must dismiss a complaint or portion thereof if the Plaintiff
22

has raised claims that are legally "frivolous or malicious," that fail to state a claim upon
23

which relief may be granted, or that seek monetary relief from a defendant who is
24

immune from such relief. 28 U.S.C. §1915A(b)(1) and (2). The Court also must dismiss
25

a complaint or portion thereof if Plaintiff fails to exhaust any administrative remedy
26

available to him. 42 U.S.C. §1997e(a).
27

The Federal Rules of Civil Procedure provide that:
28 Case 2:04-cv-00446-JAT Document 160 Filed 09/01/2005 Page 1 of 3

1 2 3

[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . .Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party. Rule 15(a), FED. R. CIV. P. (emphasis added). Under this rule, the Court may grant

4

leave to amend "freely. . .when justice so requires." However, this policy of permitting
5

liberal amendment of pleadings is tempered by "considerations of `undue delay, bad
6

faith, dilatory motive on the part of the Plaintiff, repeated failure to cure deficiencies by
7

amendments previously allowed, undue prejudice to the opposing party by virtue of
8

allowance of the amendment, futility of amendment, etc.'" Schlacter-Jones v. Gen. Tel.,
9

936 F.2d 435, 443 (9th Cir. 1991) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
10

The Court will recommend that the motion to supplement the Second Amended
11

Complaint be denied. This case has been pending since March 2004. The attachment
12

to Plaintiff's motion to supplement indicates that Petitioner was diagnosed with a bulging
13

disk in July of 2003. Although Plaintiff states that he did not discover the condition until
14

July 2005, Plaintiff provides no explanation for his late discovery. Therefore, Plaintiff's
15

attempt to supplement the complaint almost 3 years after being diagnosed, and almost
16

one and one-half years after the complaint was filed, is untimely.
17

Accordingly,
18

IT IS RECOMMENDED that Plaintiff's "Motion to Take Leave/File Supplemental
19

Pleading" filed August 26, 2005 be DENIED as untimely filed.
20

This recommendation is not an order that is immediately appealable to the Ninth
21

Circuit Court of Appeals. Any notice of Appeal pursuant to Rule 4(a)(1), Federal Rules
22

of Appellate Procedure, should not be filed until entry of the district court's judgment.
23

The parties shall have ten (10) days from the date of service of a copy of this
24

recommendation within which to file specific written objections with the Court. 28
25

U.S.C. §636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.
26

Failure to timely file objections to any factual determinations of the Magistrate Judge will
27

be considered a waiver of a party's right to de novo consideration of the factual issues
28 Case 2:04-cv-00446-JAT 2 Document 160 Filed 09/01/2005 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. DATED this 31st day of August, 2005.

Case 2:04-cv-00446-JAT

3 Document 160

Filed 09/01/2005

Page 3 of 3