1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 JOSHUA LAWRENCE LATHAM, Case No.: 3:20-cv-02177-LAB-BGS

8

REPORT AND

Plaintiff, 9 RECOMMENDATION THAT v. PLAINTIFF’S MOTIONS BE 10

DENIED

MARCUS POLLARD, ET AL.,

11

12 Defendants. 13 [ECF 66, 68]

14 Before the Court are two motions by Joshua Lawrence Latham, Plaintiff, an inmate 15 with the California Department of Corrections and Rehabilitation (CDCR). Plaintiff 16 moves for leave to file a second amended complaint (SAC) (ECF 66), and to amend his 17 pretrial order to extend the time in which he can join parties, amend the pleadings, or file 18 additional pleadings (ECF 68). For the following reasons, the Court recommends that the 19 motions be DENIED. 20

I. PROCEDURAL HISTORY

21 The complaint in this case was filed on November 5, 2020. It was screened under 22 28 U.S.C. § 1915A, and on November 17, 2021, all claims were dismissed. (ECF 29.) 23 Plaintiff filed a First Amended Complaint (FAC) on December 27, 2021. (ECF 30.) The 24 FAC was screened, and on October 7, 2022, all claims but those against five defendants 25 and alleging due process violations were dismissed. (ECF 41.) On June 25, 2023, 26 27 28 1 Plaintiff filed a motion for leave to file a SAC and a proposed SAC. (ECF 66.) His 2 proposed SAC asserts 12 claims and includes 48 defendants. (Id.) Count 12 is the only 3 new claim from those asserted in his FAC.2 On June 12, this Court ordered a response 4 from Defendants. (ECF 67.) On July 21, 2023, Defendants responded to the June 25, 5 2023, motion. (ECF 69.) Meanwhile, on June 27, 2023, Plaintiff filed a motion to amend 6 his pretrial order. (ECF 68.) The motion was docketed on July 14, 2023. (Id.) Plaintiff 7 has not withdrawn his June 25, 2023, motion. The Court, therefore, addresses both. 8 II. PLAINTIFF’S ARGUMENTS 9 In his June 25, 2023, motion, Plaintiff argues that he has “newly discovered 10 evidence” that will allow him to assert “additional theories of relief,” and requests the 11 opportunity to correct the defects in his FAC for the claims that were dismissed with 12 prejudice on October 7, 2022. (ECF 66 at 2.) Plaintiff’s purported newly discovered 13 evidence is CDCR memoranda that address incidents Plaintiff reported. (Id. at 1-2.) The 14 dates of the alleged incidents range from August 12, 2022, (see ECF 66-2 at 10) to 15 January 2023. (ECF 66-2, Exhibit B.) “Exonerated” is written after each.3 Plaintiff 16 argues that the exonerated notations by CDCR are “admissions that [its] officers are in 17 fact operating the microwave weapon described in his FAC at ECF 30 and ECF 31.” 18 (ECF 66 at 1.) However, the dates of the incidents Plaintiff describes in his proposed 19 SAC range from 2020 to August 19, 2022 (see ECF 66-1 at 31). (ECF 66-1.) None of 20 the incidents described in Plaintiff’s SAC match the incidents with the “exonerated” 21 22 23 1 The date of receipt of the motion by prison officials is the date of filing. Houston v. Lack, 487 U.S. 266, 276 (1988). 24 2 Counts 5-6 and 8 are pending after § 1915A screening of the FAC. (ECF 41.) Those claims are based 25 on allegations of due process violations related to involuntary psychiatric transfers at Richard J. Donovan Correctional Facility (RJD). (Id. at 20.) The remaining counts, 2-4, 7, and 9-11, were 26 dismissed with prejudice. (Id.) Count 12 is the only claim in Plaintiff’s proposed SAC not included in his Complaint or FAC. 27 3 Exonerated is defined as “the facts, which provided the basis for the complaint or allegation, did in fact occur; however, the investigation revealed that the actions were justified, lawful, and proper.” Cal. 28 1 notation in Exhibit B. In Defendants’ response brief, counsel for Defendants attests that 2 counsel was informed by the prison warden that the use of the term “exonerated” in 3 relation to the investigation into Plaintiff’s allegations of assault by microwave 4 technology was an administrative error and that the responses should have read 5 “unfounded.”4 (Declaration of Peter Ben Nichols in Support of Defendants’ Opposition 6 (“Nichols Decl.”), ECF 69-1.) 7 Plaintiff’s proposed SAC also adds 43 defendants to the five defendants remaining 8 after § 1915A screening of Plaintiff’s FAC. The claims against the 43 defendants include 9 allegations that officers “physically abuse[d] [Plaintiff] out of retaliation to [his]” 10 complaints; were “assigned to operate an illegal microwave weapon at [RJD],” and 11 committed other acts related to allegations concerning a microwave weapon and the 12 unnecessary use of force during psychiatric transfers. (ECF 66-1 at 3, 9-14.) 13 Plaintiff’s June 27, 2023, motion seeks to amend the pretrial order to extend the 14 time in which he can move to “join other parties, to amend the pleadings and file 15 additional pleadings regarding [RJD’s] investigative services unit officer’s stalking, 16 sexual abuse, torture, attempted murder, retaliation and invasion of privacy by use of 17 force with radiation with an illegal microwave weapon.” (ECF 68 at 1.) 18 III. RELEVANT LAW 19 Newly discovered evidence under Federal Rule of Civil Procedure 60(b) may 20 qualify as a basis for relief from a final order or judgment dismissing claims with 21 prejudice in a § 1983 case.5 See Joseph v. Cal. Prison Indus. Auth., No. 2:13-cv-0122 22 CKD P., 2013 WL 3242233, at *1 (E.D. Cal. June 20, 2013) (citing Fed. R. Civ. P. 23

24 25 4 Unfounded is defined as “[t]he investigation conclusively proved that the act(s) alleged did not occur, or the act(s) may have, or in fact, occurred but the individual employee(s) named in the complaint(s) 26 was not involved.” Cal. Code Regs. tit. 15, § 3392.1(a)(3). 5 Although Plaintiff fails to cite Rule 60(b) in his newly discovered evidence argument, courts “construe 27 pro se filings liberally” and “afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). The Court has, therefore, addressed the merits of Plaintiff’s argument that he 28 1 60(b)(1), (2), (6)). The claims Plaintiff seeks to amend in his motion were dismissed 2 from his FAC with prejudice, or without further leave to amend. (See ECF 41.) If a 3 plaintiff meets the standard under Rule 60(b) for newly discovered evidence, he or she 4 may be entitled to relief from such a final order or judgment, which would potentially 5 allow amendment despite a dismissal having been with prejudice. Although leave to 6 amend shall be freely granted under Federal Rule of Civil Procedure 15(a), a court does 7 not have to allow futile amendments. Id. at *2. Futility alone can justify denial of a 8 motion to amend a pleading. Gonzalez v. Planned Parenthood, 759 F.3d 1112, 1116 (9th 9 Cir. 2014). “[G]ranting leave to amend is a matter of discretion, and the court’s 10 ‘discretion to deny leave to amend is particularly broad’ in cases . . . where the plaintiffs 11 have previously amended the complaint.” Schmitz v. A. Asman, No. 2:20-cv-00195- 12 JAM-CKD PS, 2021 WL 3362811, *7 (E.D. Cal. Aug. 3, 2021), report and 13 recommendation adopted by No. 2:20-cv-00195-JAM-CKD PS, 2021 WL 4356035 (E.D. 14 Cal. Sept. 23, 2021) (quoting Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 15 1047, 1058 (9th Cir. 2011)). Under Rule 16, a scheduling order “may be modified only 16 for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). 17 IV. APPLICATION 18 The newly discovered evidence to which Plaintiff refers is CDCR memoranda he 19 recently received that have the notation “exonerated” after his individual complaints that 20 CDCR officers operated an illegal microwave weapon. As the Court has pointed out, the 21 memoranda incident dates do not match up with the incident dates alleged in Plaintiff’s 22 proposed SAC. Furthermore, counsel for Defendants attests that counsel was informed 23 by the prison warden that the use of the term “exonerated” in relation to the investigation 24 into Plaintiff’s allegations of assault by microwave technology was an administrative 25 error and that the responses should have read “unfounded.” (Nichols Decl. ¶ 4.) 26 Even assuming the memoranda are somehow indicative of the CDCR admitting 27 generally to Plaintiff’s allegations of officers’ use of an illegal microwave weapon, the 28 substance of the allegations is obviously entirely frivolous because it lacks an arguable 1 basis either in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). 2 Granting Plaintiff leave to amend his claims would, therefore, be futile. Taylor v. King 3 Cty. WA, No. 2:21-cv-1182-MJP-TLF, 2021 WL 5114057, *2 (W.D. Wash. Oct. 14, 4 2021), report and recommendation adopted by No. 2:21-cv-1182-MJP-TLF, 2021 WL 5 5113459 (Nov. 2, 2021) (recommending denial of a motion to amend a § 1983 complaint 6 because speculative allegations with no basis in law or fact made the complaint frivolous, 7 and any attempt to amend a frivolous complaint would be futile); Warfield v. Cal. 8 Attorney Gen. Office, No. 2:17-cv-2544 AC P, 2019 WL 4054021, *2 (E.D. Cal. Aug. 28, 9 2019), report and recommendation adopted by No. 2:17-cv-02544-TLN-AC, 2019 WL 10 5617993 (E.D. Cal. Oct. 31, 2019) (recommending denial of a motion to amend a § 1983 11 complaint because “plaintiff is unable to allege any nonfrivolous facts . . . that would 12 state a legally cognizable claim,” and amendment would, therefore, be futile). 13 Allowing Plaintiff to amend the FAC to add 43 defendants would also be futile. 14 The allegations against the 43 individuals either relate to claims based on a microwave 15 weapon or to retaliation against Plaintiff for filing 602 inmate grievances and 16 unnecessary use of force and physical abuse (see ECF 66-1 at 3, 9-14), claims already 17 dismissed with prejudice from Plaintiff’s FAC (see ECF 41 at 20). 18 The allegations in Plaintiff’s June 27, 2023, motion are, likewise, entirely 19 frivolous. Under Rule 16, a scheduling order “may be modified only for good cause and 20

21 22 6 Factual allegations regarding a microwave weapon were already asserted by Plaintiff in his prior § 1983 complaint and were the basis for dismissing the complaint after § 1915A screening. The court held 23 that the allegations “‘[rose] to the level of the irrational or the wholly incredible.’” See Latham v. Doe, No. 3:20-CV-0354-JLS-BGS, 2020 WL 1692540, * 1 (S.D. Cal. Apr. 7, 2020) (quoting Denton v. 24 Hernandez, 504 U.S. 25, 25-26 (1992)). The court stated that “‘a complaint, containing as it does both 25 factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact.’” Id. (quoting Neitzke, 490 U.S. at 325). The court further stated that “‘the term “frivolous,” when 26 applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.’” Id. (quoting Neitzke, 490 U.S. at 325). Finally, “[w]hen determining whether a complaint 27 is frivolous, the court need not accept the allegations as true, but must pierce the veil of the complaint’s factual allegations, to determine whether they are fanciful, fantastic, [or] delusional.” Id. (internal 28 1 || with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Plaintiff’s motion to extend the time 2 ||in which he may amend his complaint under Rule 16 is based on the same allegations of 3 || officers’ use of an illegal microwave weapon. (See ECF 68 at 1 (Plaintiff moves for an 4 ||extension of time so that he may “join other parties, to amend the pleadings and file 5 || additional pleadings regarding [RJD’s] investigative services unit officer’s stalking, 6 sexual abuse, torture, attempted murder, retaliation and invasion of privacy by use of 7 || force with radiation with an illegal microwave weapon.’’).) The Court has deemed these 8 || factual allegations frivolous. Plaintiff fails to show good cause to extend the time in 9 || which he can amend his FAC because his only reason for doing so is to move to amend 10 || his FAC to add claims based on frivolous allegations. 11 V. RECOMMENDATION 12 This report and recommendation of the undersigned Magistrate Judge is submitted 13 || to United States District Judge Larry Alan Burns under 28 U.S.C. § 636(b)(1). For the 14 reasons set forth above, it is RECOMMENDED that Plaintiff’s motions for leave to file 15 SAC (ECF 66) and to amend his pretrial order to extend the time in which he can join 16 || parties, amend the pleadings, or file additional pleadings (ECF 68) be DENIED. 17 IT IS ORDERED that no later than September 12, 2023, any party to this action 18 || may file written objections with the Court and serve a copy on all parties. The document 19 should be captioned “Objections to Report and Recommendation.” 20 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 21 Court and served on all parties no later than September 19, 2023. The parties are 22 || advised that failure to file objections within the specified time may waive the right to 23 ||raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 24 455 (9th Cir. 1998). 25 26 Dated: August 22, 2023 Z p / / 27 on. Bernard G. Skomal 28 United States Magistrate Judge