ROTISH VIKASH SINGH, SID #11852604, Two Rivers Correctional Institution, Umatilla, OR, Plaintiff Pro Se.
ELLEN F. ROSENBLUM, Attorney General, SHANNON F. VINCENT, Assistant Attorney General, Oregon Department of Justice, Salem, OR, Attorneys for Defendants Brown, Fanger, Franke, Gower, Gruenwald, Hansen, Jackson, Martinez, Mathisen, Myrick, Perkins, Reynolds, Shelton, Taylor, and Wettlaufer, (the "State Defendants").
STEVEN A. KRAEMER, MARK SHERMAN, Hart Wagner LLP, Portland, OR, Attorneys for Defendant Tom Clark.
OPINION AND ORDER
ANN J. BROWN, District Judge.
Plaintiff, an inmate at the Twin Rivers Correctional Institution, brings this civil action pro se. Currently before the Court are several matters: (1) Plaintiff's Motion for Leave to Amend (#62); (2) Plaintiff's Motion to Sever (#61); (3) the State Defendants' Partial Rule 12(C) Motion for Judgment on the Pleadings (#59); and (4) Plaintiff's Motion for Certification of Question to Oregon Supreme Court (#74).
I. Plaintiff's Motion for Leave to Amend
Plaintiff's original Complaint alleges claims for civil rights violations under 42 U.S.C. § 1983. Plaintiff identifies as Defendants by name and position several correctional officials and prison medical providers, as well as an individual employed with a private company which provides food products to the Oregon Department of Corrections ("ODOC"). Plaintiff alleges five separate and distinct claims for relief: (1) that prison officials displayed deliberate indifference to his serious medical condition by discontinuing medication for his irritable bowl syndrome; (2) that prison officials displayed deliberate indifference to his serious medical condition by discontinuing the orders for an extra, medically approved, pillow for management of his reflux; (3) that prison officials acted with deliberate indifference by serving Plaintiff out-dated and spoiled food on one occasion; (4) that prison officials knowingly and deliberately opened Plaintiff's legal mail from his attorney outside Plaintiff's presence and then retaliated against Plaintiff when he filed a grievance; and (5) that prison officials acted with deliberate indifference by exposing Plaintiff to an unreasonable risk of serious harm because Plaintiff was forced to sleep on an unsanitary mattress. For the most part, in each separate claim Plaintiff alleges individual involvement by one or more of the named Defendants.
In his proposed Amended Complaint, Plaintiff again identifies by name and position each of the named Defendants. Plaintiff does not, however, separate his claims into distinct categories and does not identify the individual Defendants personally involved in each alleged deprivation of his rights. Also, in addition to alleging civil rights claims under 42 U.S.C. § 1983, Plaintiff attempts to invoke this Court's supplemental jurisdiction to allege various state law tort claims.
B. Legal Standards
Rule 15 governs amendments to pleadings, and states, in relevant part, that where a party has already been served with a responsive pleading, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed.R.Civ.P. 15 (a) (1)-(2) (2012). The standard applied to motions for leave to amend is a liberal one. Amerisource Bergen Co. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). Even so, "a district court need not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile." Id.
Defendant Clark opposes Plaintiff's motion to amend because the proposed Amended Complaint does not plead any specific allegations of personal involvement by Defendant Clark in the alleged violation of Plaintiff's rights that would support a colorable claim under either state or federal law. The State Defendants also oppose Plaintiff's motion, arguing that the allegations in the proposed Amended Complaint are directed at "prison officials" and generally fail to allege any personal involvement by individual Defendants, that Plaintiff's proposed state law ...