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United States District Court

Eastern District of California 

Patrick Ronald Holley,

Plaintiff, No. Civ. S 04-1425 GEB PAN P

vs. Order

California Department of

Corrections, et al.,

Defendants.

-oOoPlaintiff is a state prisoner without counsel prosecuting a

civil rights action. 

July 25, 2005, the court dismissed all of plaintiff claims

except his claim that defendant Herrera retaliated against

plaintiff. The court found the pleading stated a claim that the

other seven defendants ratified Herrera’s misconduct and showed a

callous indifference to constitutional rights. See Larez v. City

of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991). However, they 

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were unexhausted.

June 9 and July 18, 2005, plaintiff requested leave to

supplement his pleading. August 4, 2005, plaintiff filed an

amended complaint as of right. See Fed. R. Civ. P. 15 (plaintiff

may amend once as of right before any responsive pleading is

served). He moved October 21, 2005, to “strike” prior requests

re supplemental pleading.

October 24, 2005, plaintiff moved to file a second-amended

complaint, naming as defendants those previously dismissed for

failure to exhaust administrative remedies. Plaintiff explains

exhaustion is now complete, and he also seeks to add Warden

Schwartz as a defendant under a ratification theory. Defendant

Herrera opposed November 7, 2005, contending McKinney v. Carey,

311 F.3d 1198 (9th Cir. 2002), precludes amendment. Herrera

further argues the claim against Schwartz alleges supervisory 

McKinney does not bar amendment to plead newly-exhausted

claims. As for defendant Schwartz, plaintiff’s pleading is

sufficient for reasons explained as to other supervisory

defendants in my June 21, 2005, finding and recommendation.

Plaintiff moved March 30, 2005, to compel discovery. 

Herrera opposed and moved for a protective order, arguing that

discovery propounded on defendants subsequently dismissed

required no answer. November 14, 2005, plaintiff again moved to

compel, and Herrera again opposed for the same reasons.

I have not set a discovery deadline. 

Good cause appearing:

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1. Plaintiff’s October 24, 2005, motion for leave to file a

second-amended complaint is granted under the liberal amendment

principles set forth in Fed. R. Civ. P. 15. Defendants shall

answer within 20 days. 

2. Plaintiff’s October 21, 2005, motion to strike is

granted and his June 9 and July 18, 2005, motions to supplement

the pleading are deemed withdrawn.

3. Plaintiff’s March 30, 2005, motion to compel,

defendant’s July 29, 2005, motion for a protective order and

plaintiff’s November 14, 2005, motion to compel are denied

without prejudice to new motions made in light of plaintiff’s

amended pleading.

So ordered. 

Dated: January 19, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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