1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 TERRANCE DAVIS, 4 Plaintiff, Case No. 3:24-CV-00119-ART-CLB 5 v. ORDER 6 PICKENS,

7 Defendant.

8 9 Pro se Plaintiff Terrance Davis brings this case against Defendant Madeline 10 Pickens under

, alleging retaliation in violation of the First 11 Amendment. Before the Court is Davis’s motion to amend his complaint (ECF No. 12 50) and Magistrate Judge Baldwin’s report and recommendation, which 13 recommends denying that motion (ECF No. 52). For the following reasons, the 14 Court rejects the R&R and grants leave to amend. 15 I. BACKGROUND 16 Davis filed this lawsuit in March 2024, alleging a claim of First Amendment 17 retaliation against Pickens. (ECF No. 1-1.) After screening the complaint, the 18 Court allowed Davis to proceed on his single claim against Pickens. (ECF No. 13.) 19 Davis claims that after he filed a Prison Rape Elimination Act (“PREA”) complaint 20 against Pickens, she restricted him from participating in recreation, phone 21 communication, other correspondence, and other opportunities. (Id. at 3.) 22 Pickens told Davis that he would never attend any exercise programs or out-of- 23 cell functions on her shift. (Id. at 3–4.) When Davis raised this issue with 24 Pickens’s supervisors, nobody intervened. (Id. at 4.) 25 Davis attempted to amend his complaint twice. (ECF Nos. 30, 49.) The 26 Court struck the first proposed amended complaint because Davis failed to file a 27 motion with the pleading, and denied the second motion because it did not 28 include points and authorities. (ECF Nos. 39, 49.) In January 2025, Davis filed 1 this motion to amend along with a proposed amended complaint. (ECF No. 50.) 2 Davis seeks to add two additional defendants, Patricia Hernandez and Tasheena 3 Cooke, to the complaint. (Id.) 4 II. STANDARD OF REVIEW 5 Under the Federal Magistrates Act, a Court “may accept, reject, or modify, 6 in whole or in part, the findings or recommendations made by [a] magistrate 7 judge.”

(b)(1). Where a party timely objects to a magistrate judge's 8 report and recommendation, then the court is required to “make a de 9 novo determination of those portions of the [report and recommendation] to which 10 objection is made.”

(b)(1). A court is not required to conduct “any 11 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 12 Arn,

(1985). 13 III. DISCUSSION 14 Although Davis failed to object, the Court conducts de novo review and 15 finds that amendment should be allowed. 16 “[A] court should liberally allow a party to amend its pleading. Sonoma 17 Cnty. Ass'n of Retired Emps. v. Sonoma Cnty.,

(9th Cir. 18 2013); see also Fed. R. Civ. P. 15. “Courts may decline to grant leave to amend 19 only if there is strong evidence of ‘undue delay, bad faith or dilatory motive on 20 the part of the movant, repeated failure to cure deficiencies by amendments 21 previously allowed, undue prejudice to the opposing party by virtue of allowance 22 of the amendment, [or] futility of amendment, etc.’”

(citing Foman v. Davis, 23

). The consideration of prejudice to the opposing party carries 24 the greatest weight. Eminence Cap., LLC v. Aspeon, Inc.,

(9th 25 Cir. 2003). “Absent prejudice, or a strong showing of any of the remaining Foman 26 factors, there exists a presumption under Rule 15(a) in favor of granting leave to 27 amend.”

An amendment is only futile if no set of facts can be proved under 28 the amendment that would constitute a valid claim or defense. Miller v. Rykoff- 1 Sexton, Inc.,

(9th Cir. 1988). 2 The R&R finds that amendment would be futile because Davis’s allegations 3 against Cooke and Hernandez fail to state a claim. (ECF No. 52 at 4.) The R&R 4 explains that Davis did not include any allegations against Cooke and that he 5 only alleged that he wrote to Hernandez about Pickens’s “intimidation.” (Id.) The 6 R&R finds these allegations futile because Davis “does not allege that Hernandez 7 or Cooke retaliated against him, knew of Pickens’s alleged retaliation and failed 8 to act, or that they personally violated his First Amendment rights.” (Id. at 5.) 9 However, the proposed amended complaint, read liberally, does allege that 10 Hernandez and Cooke knew of Pickens’s alleged retaliation and failed to act. 11 Davis’s amended complaint includes allegations against both proposed 12 defendants. (ECF No. 50 at 10–11.) Davis alleges that he explained the sexual 13 harassment reports and kites to Hernandez and asked for “a safe e[s]cort to court 14 out of concern and more retaliation.” (Id. at 10.) He alleges that he again wrote to 15 Hernandez about Pickens’s “intimidation.” (Id.) And he alleges that he “filed 16 another grievance on the informal level pleading for warden Tasheena Cooke and 17 Ms. Hernandez to please intervene.” (Id. at 11.) 18 There is no respondeat superior liability under section 1983, but a 19 supervisor may be held liable for constitutional violations of their subordinate if 20 the supervisor “knew of the violations and failed to act to prevent them.” Taylor 21 v. List,

(9th Cir. 1989). Davis’s amended complaint, read 22 liberally, alleges that Cooke and Hernandez knew about the alleged retaliation 23 and failed to act to prevent it. Amendment would therefore not be futile. 24 Granting leave to amend will not prejudice Defendant Pickens or cause 25 undue delay. Defendant merely argues that allowing the amendment would result 26 in the filing of a motion to dismiss, which would take time for the Court to rule 27 on and delay litigation. (ECF No. 51 at 5.) A minor delay does not constitute 28 prejudice or undue delay. See, e.g., Don v. Unum Grp., No. CV134502DSFVBKX, 1 ||

, at *1 (C.D. Cal. Mar. 26, 2015) (a small amount of delay does 2 || not warrant denial of leave to amend). Discovery has not yet closed, and the 3 || amended complaint does not add additional claims that would complicate 4 || discovery. See Johnson v. Serenity Transportation, Inc., No. 15-CV-02004-JSC, 5 ||

, at *5 (N.D. Cal. Aug. 17, 2015) (no prejudice where case was 6 || still in the pleading stage); Organic Pastures Dairy Co., LLC v. Sebelius, No. 1:12- 7 || CV-02019-SAB,

, at *3 (E.D. Cal. May 10, 2013) (same). The 8 || proposed amendment should not be a surprise where Pickens alleged that (then- 9 || unnamed) supervisors failed to act in his original complaint and where Pickens 10 || previously attempted to amend the complaint to add Cooke and Hernandez. (See 11 || ECF No. 48.) 12 IV. CONCLUSION 13 It is therefore ordered that Judge Baldwin’s report and recommendation 14 || (ECF No. 52) is rejected. 15 The Court grants Plaintiffs motion for leave to file a first amended 16 || complaint (ECF No. 50). 17 Plaintiffs First Amended Complaint (ECF No. 50) is the operative complaint 18 || in this action. 19 20 21 DATED: April 22, 2025 22 een 2 Fue Wassud? 24 ANNER TRAUM UNITED STATES DISTRICT JUDGE 26 27 28