United States District Court, D. Oregon
A. RUSSO United States Magistrate Judge
Michael James Evans, a state inmate, brings this action
alleging various constitutional violations by Oregon
Department of Corrections (“ODOC”) staff. On May
20, 2013, parties consented to allow a Magistrate Judge to
enter final orders and judgment in this case in accordance
with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). Defendants
move to strike plaintiff's fifth claim from his proposed
Fourth Amended Complaint. In response, plaintiff moves for
extensions of time and to file a corrected Fourth Amended
Complaint. For the reasons discussed below, the parties'
motions are denied.
history of this matter is well known to all parties, such
that it will only be repeated to the extent necessary to
provide context for the present motions.
2012, plaintiff filed his Third Amended Complaint, asserting
four claims against ODOC officials. See generally
Third Am. Compl. (doc. 75). Thereafter, the parties engaged
in extensive briefing on motions to dismiss and cross-motions
for summary judgment. In January 2015, this Court issued an
Opinion and Order (“O & O”) dismissing the
first, second, and third claims, and granting summary
judgment in favor of plaintiff as to liability on the fourth
claim pertaining to defendant James Deacon. See
generally Evans v. Deacon, 2015 WL 248412 (D.
Or. Jan. 20, 2015).
Court subsequently appointed plaintiff pro bono counsel to
assist him with mediation, which was scheduled for May 2015.
The mediation was successful, in that plaintiff's
“Fourth Claim was settled, and valuable consideration
was exchanged therefor.” Defs.' Resp. to Mot. Am. 3
n.2 (doc. 307). The parties placed settlement terms on the
record in October 2015. Id. at 3; see also
Evans v. Deacon (“Evans II”), 2016 WL
591758, *1 n.1 (D. Or. Feb. 12, 2016).
the same time, plaintiff filed numerous motions to amend or
supplement his Third Amended Complaint, or for
reconsideration of this Court's prior rulings. Evans
II, 2016 WL 591758, at *1-2. In February 2016, the Court
issued an O & O denying plaintiff's motions and
entered judgment dismissing this case. See generally
id.; Judgment (Feb. 26, 2016) (doc. 268). Plaintiff
timely appealed the January 2015 and February 2016 O &
2017, the Ninth Circuit affirmed the dismissal of
plaintiff's first and second claims, and ruled that this
Court did not abuse its discretion in denying reconsideration
or leave to amend via the February 2016 O & O. Evans
v. Deacon, 687 Fed. App'x 589, 592 (9th Cir.2017).
In other words, the Ninth Circuit reversed and remanded
solely as to plaintiff's third claim pertaining to the
events of December 2011. Id.
following the Ninth Circuit's decision, plaintiff moved
to file an amended complaint, seeking to add two claims that
this Court and the Ninth Circuit had previously considered
and rejected. Accordingly, in October 2017, this Court denied
plaintiff's motion pursuant to the law of the case
doctrine and rule of mandate. See generally Order
(Oct. 30, 2017) (doc. 296). Because plaintiff had
recently obtained counsel, and because the two viable claims
did not exist within a single pleading, the Court instructed
plaintiff's attorney to file an amended complaint
consisting exclusively of plaintiff's third claim against
defendant Jose Olvera (relating to the December 2011
incident) and fourth claim against Deacon (which was subject
to the binding settlement agreement). The Court explicitly
warned plaintiff that it would “only accept for filing
these two claims” and cautioned plaintiff against
“attempting to interject previously rejected
allegations.” Id. at 6.
ignored the Court's orders and instead lodged an amended
complaint that consisted not only of his third claim, but
also his fifth claim, which was dismissed in prior
proceedings. Defendants therefore moved to strike the
proposed fifth claim. See generally Defs.' Mot.
Dismiss (doc. 301). Plaintiff responded through counsel by
filing two motions for extensions of time and two motions to
amend, the latter of which abandoned the fifth claim but
contained allegations relating to the fourth claim that did
not appear in the Third Amended Complaint (namely, all or
part of paragraphs 23, 26, and 27 in the Proposed Fourth
Amended Complaint). Compare Third Am. Compl.
¶¶ 50-58 (doc. 75), with Proposed Fourth
Am. Compl. ¶¶ 17-29 (doc. 306-1). After defendants
opposed the proposed amendments to the fourth claim,
plaintiff withdrew his request for oral argument but did not
otherwise file a timely reply. See generally
Defs.' Resp. to Mot. Leave (doc. 307); Pl.'s
Withdrawal (doc. 308).
such, plaintiff's most recent motion to amend is denied
for the reasons previously identified by this Court and
affirmed by the Ninth Circuit.
Motion to Dismiss (doc. 301) is DENIED as moot in light of
plaintiff's counsel's concession that his fifth claim
was erroneously re-pleaded. Plaintiff's Motions for
Extensions of Time (docs. 302, 305) and Motion to
Amend/Correct (doc. 304) are likewise DENIED as moot.
Motion for Leave (doc. 306) is DENIED for the reasons
discussed herein. Plaintiff shall file an amended complaint
consisting exclusively of his third claim against Olvera
(relating to the December 2011 incident) and fourth claim
against Deacon (which is subject to the binding settlement
agreement) within fourteen days of the date of this Order.
Failure to follow this ...