# Holestine v. Covello

> District Court, S.D. California · September 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10081956

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ERNEST KELLY HOLESTINE, Case No.: 20-cv-00159-LAB (JLB)

12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION RE: (1)
DEFENDANTS’ MOTION TO
14 P. COVELLO, et al.,
DISMISS COMPLAINT; AND (2)
15 Defendants. PLAINTIFF’S MOTION FOR
LEAVE TO FILE A FIRST
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AMENDED COMPLAINT
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[ECF Nos. 19, 24]
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21 Before the Court is Defendants’ Motion to Dismiss the Complaint (ECF No. 19) and
22 Plaintiff’s Motion for Leave to File a First Amended Complaint (ECF No. 24). The Court
23 submits this Report and Recommendation to United States District Judge Larry Alan Burns
24 pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.3 of the Local Rules of Practice
25 for the United States District Court for the Southern District of California. Upon review
26 of the filings, the Court RECOMMENDS that the District Court GRANT Plaintiff’s
27 Motion for Leave to File a First Amended Complaint (ECF No. 24) and DENY AS MOOT
28 Defendants’ Motion to Dismiss the Complaint (ECF No. 19).
1 I. BACKGROUND
2 Plaintiff Ernest Kelly Holestine (“Plaintiff”), a state prisoner proceeding pro se and
3 in forma pauperis, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on
4 January 23, 2020. (ECF Nos. 1; 4.) In his complaint, Plaintiff alleges that various prison
5 officials at Richard J. Donovan Correctional Facility violated his Eighth Amendment rights
6 by failing to protect him from the assault of another inmate, labeling him an informant, and
7 conspiring against him. (ECF No. 1 at 20.) He further alleges that various prison officials
8 violated his First Amendment rights when they retaliated against him for attempting to
9 report misconduct by prison staff. (Id.) Finally, he alleges several violations of state tort
10 law, including battery by a fellow inmate. (Id. at 20–21.)
11 On June 26, 2020, Defendants1 filed a motion to dismiss Plaintiff’s Fifth Cause of
12 Action against Defendants Covello, Paramo, Armenta, Covel, Bracamonte, Smith, and A.
13 Gonzalez for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
14 (ECF No. 19.) Defendants also asked the Court to decline to retain supplemental
15 jurisdiction over the state law claims against these Defendants. (Id. at 7.) Plaintiff filed an
16 opposition. (ECF No. 22.)
17 On August 6, 2020, Plaintiff filed a motion seeking leave to file a first amended
18 complaint. (ECF No. 24.) As required by Civil Local Rule 15.1, Plaintiff attached his
19 proposed First Amended Complaint to his motion. (See id. at 13–97.) Plaintiff claims he
20 addressed the issues raised by Defendants in their motion to dismiss, adding additional
21 detailed factual allegations to support his Fifth Cause of Action. (See id. at 4.) On
22 September 3, 2020, Defendants filed a Notice of Non-Opposition to Plaintiff’s Motion for
23 Leave to File an Amended Complaint, stating in full: “PLEASE TAKE NOTICE that
24 Defendants do not oppose Plaintiff’s Motion for Leave to File an Amended Complaint
25 (ECF No. 24).” (ECF No. 26.)
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1 All Defendants except for inmate M. Gonzalez filed the motion to dismiss. The
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1 II. DISCUSSION
2 A. Legal Standard
3 Within twenty-one days after service of a Federal Rule of Civil Procedure 12(b)
4 motion, a party may amend its pleading once as a matter of course. Fed. R. Civ. P. 15(a)(1);
5 Sharkey v. O'Neal, 778 F.3d 767, 774 (9th Cir. 2015). In all other cases, a party may amend
6 its pleading “only with the opposing party’s written consent or the court’s leave.” Fed. R.
7 Civ. P. 15(a)(2); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.
8 2003). Leave should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P.
9 15(a)(2). “This policy is to be applied with extreme liberality.” Eminence Capital, LLC,
10 316 F.3d at 1051 (internal quotation marks and citations omitted). When considering
11 whether to grant leave to amend, a district court should consider the Foman factors, which
12 include: “undue delay, the movant’s bad faith or dilatory motive, repeated failure to cure
13 deficiencies by amendments previously allowed, undue prejudice to the opposing party,
14 and futility.” Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (citing
15 Foman v. Davis, 371 U.S. 178, 182 (1962)).
16 B. Analysis
17 Here, Plaintiff constructively filed his motion for leave to file an amended complaint
18 only thirty-seven days after Defendants filed their motion to dismiss. (See ECF Nos. 19;
19 24.) Plaintiff therefore sought leave to amend his complaint without undue delay and
20 without any apparent prejudice to Defendants. Indeed, Defendants do not oppose the
21 motion. Accordingly, the Court recommends that Plaintiff’s motion for leave to file his
22 proposed First Amended Complaint be GRANTED and Defendants’ motion to dismiss be
23 DENIED AS MOOT. See Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008
24 (9th Cir. 2015) (“It is well-established in our circuit that an amended complaint supersedes
25 the original, the latter being treated thereafter as non-existent.” (internal quotation marks
26 and citation omitted)).
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1 CONCLUSION & RECOMMENDATION
2 Based on the foregoing, IT IS HEREBY RECOMMENDED that the District Court
3 |/issue an Order: (1) approving and adopting this Report and Recommendation; (2)
4 ||GRANTING Plaintiff's Motion for Leave to File a First Amended Complaint (ECF No.
5 (3) DENYING AS MOOT Defendants’ Motion to Dismiss (ECF No. 19); and (4)
6 || directing the Clerk of Court to file Plaintiff's proposed First Amended Complaint (ECF
7 || No. 24 at 13-97) on the docket. Any objections to this Report and Recommendation shall
8 filed in accordance with 28 U.S.C. § 636(b)(1)(C).
9 IT IS SO ORDERED.
10 || Dated: September 14, 2020
Burkhendtr
12 n. Jill L. Burkhardt
B nited States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081956. Public record. Not legal advice.