1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Lashawn L. Turner-Bey, Case No. 2:24-cv-01890-APG-BNW

5 Plaintiff, ORDER 6 v.

7 Yups, et al.,

8 Defendants.

9 10 Before this Court are pro se Plaintiff’s motion to amend (ECF No. 31) and motion for 11 subpoena duces tecum (ECF No. 35). Defendants replied at ECF Nos. 34 and 36. No replies are 12 necessary to resolve these motions. For the reasons discussed below, this Court denies Plaintiff’s 13 motion to amend without prejudice, and it further denies the motion for subpoena duces tecum as 14 premature. 15 I. BACKGROUND 16 Plaintiff initiated this case by filing a motion to proceed in forma pauperis and attaching a 17 complaint. ECF No. 1. This Court denied Plaintiff’s motion and directed him to pay the filing fee 18 or file a new application with the required documents. ECF No. 3. Plaintiff did so at ECF No. 4. 19 Shortly after, he filed an “affidavit of prosecution,” which he noted was an addendum to his 20 complaint. ECF No. 5. About a month later, Plaintiff filed a proposed amended complaint. ECF 21 No. 7. He filed the exact same “affidavit of prosecution” again at ECF No. 8, and another 22 addendum at ECF No. 12. 23 The district judge assigned to this case determined that Plaintiff’s proposed amended 24 complaint at ECF No. 7 would be the operative complaint. ECF No. 20 at 4. He screened that 25 complaint and found that Plaintiff stated a colorable claim under the Eighth Amendment for 26 deliberate indifference to a serious medical need against Defendants Yups, LeGrand, and Dr. 27 Doe. Id. Importantly, the district judge explained that he would not piecemeal Plaintiff’s 1 claims, defendants, and factual allegations he wishes to pursue in this lawsuit. Id. at 9. The district 2 judge allowed Plaintiff to combine his multiple filings into a single, second amended complaint, 3 but that if he chose to do so, he must file it by June 13, 2025. Id. The district judge further ordered 4 that if Plaintiff did not file a second amended complaint by that date, the action would proceed on 5 his Eighth Amendment claim only. Id. 6 Plaintiff did not file a second amended complaint by the deadline. So, the district judge 7 ordered that the action would proceed on the Eighth Amendment claim only. ECF No. 25. In that 8 same order, the district judge stayed the case for 90 days to allow the parties an opportunity to 9 settle. Id. He stated: “If the parties proceed with this action, the Court will then issue an order 10 setting a date for Defendants to file an answer or other response. Following the filing of an 11 answer, the Court will issue a scheduling order setting discovery and dispositive motion 12 deadlines.” Id. In late September, Defendants filed a status report noting that the parties would 13 proceed with this action. ECF No. 28. Plaintiff filed his motion to amend a little over a week 14 later, and he filed his motion for subpoena duces tecum one month after that. ECF Nos. 31 and 15 35. This Court has yet to set a deadline for Defendants to answer or to issue a scheduling order. 16 II. DISCUSSION 17 A. Motion to Amend 18 Generally, a party may amend its pleading once “as a matter of course” within twenty-one 19 days of serving it, or within twenty-one days after service of a responsive pleading or motion 20 under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). Otherwise, “a party may amend its pleading 21 only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). 22 “The court should freely give leave when justice so requires.” Id. “The court considers five 23 factors [under Rule 15] in assessing the propriety of leave to amend—bad faith, undue delay, 24 prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously 25 amended the complaint.” United States v. Corinthian Colls.,

(9th Cir. 2011). 26 “The standard for granting leave to amend is generous.”

“The party opposing the amendment 27 bears the burden of showing why leave should be denied, including the burden of establishing 1 prejudice.” Underwood v. O’Reilly Auto Enterprises, LLC,

, 343 (D. Nev. 2022) 2 (internal citations omitted). 3 Under Federal Rule of Civil Procedure 6, a court may extend a deadline for good cause: 4 “(A) with or without motion or notice if the court acts, or if a request is made, before the original 5 time or its extension expires; or (B) on motion made after the time has expired if the party failed 6 to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1). Similarly, this district’s local rules 7 state: “A request made after the expiration of the specified period will not be granted unless the 8 movant or attorney demonstrates that the failure to file the motion before the deadline expired 9 was the result of excusable neglect.” LR IA 6-1(a). 10 Plaintiff states that leave to amend should be freely granted under Federal Rule of Civil 11 Procedure 15(a). ECF No. 31. He argues that this Court should permit him to amend his 12 complaint according to the underlying facts and allegations in his “affidavit of prosecution.”

at 13 2. Although Plaintiff previously filed this “affidavit of prosecution” at ECF Nos. 5 and 8, he 14 attached it to his motion to amend, presumably as his second amended complaint. 15 Defendants reply that the motion should be dismissed under Rule 161 because the deadline 16 to amend has passed. ECF No. 34 at 2. They further argue that the complaint is procedurally 17 improper, that allowing amendment would cause undue delay, that he has already filed an 18 amended complaint, and that his claims are futile.

at 2–5. “[Plaintiff] is attempting to add 19 entirely new claims unrelated to his Complaint. [Plaintiff] is attempting to bring claims related to 20 freedom of religion, for due process for unrelated medical issues, the bulk of which have nothing 21 to do with his underlying claim of dental treatment.” Id. at 5. 22 Plaintiff previously filed his attachment to the motion to amend (the “affidavit of 23 prosecution”) in this case at ECF Nos. 5 and 8. The district judge explained that he would not 24 piecemeal Plaintiff’s multiple filings together to form a complaint. The district judge gave 25

26 1 While Federal Rule of Civil Procedure 16(b)(4) commonly applies to tardy motions to amend like this one, it only concerns cases with scheduling orders. As discussed above, this Court has 27 yet to issue a scheduling order. Accordingly, it applies Federal Rule of Civil Procedure 6 because the Court set a deadline, independent of a scheduling order, for Plaintiff to file a second amended 1 Plaintiff an opportunity to pursue those claims and defendants by filing a complete second 2 amended complaint. ECF No. 20 at 9. Plaintiff moved to amend on October 3, 2025, almost four 3 months after the deadline to amend had passed. Id. He has not addressed the factors under Rule 4 15, nor has he demonstrated that his failure to file an amended complaint by June 13, 2025, was a 5 result of excusable neglect. In sum, Plaintiff has not met his burden for this Court to extend the 6 deadline for amendment. 7 In addition, as explained by Defendants, the proposed, second amended complaint is 8 improperly alleging unrelated claims as to different defendants in violation of Federal Rule of 9 Civil Procedure 20. Under this rule, defendants may be joined in one action if “[1] any right to 10 relief is asserted against them jointly, severally, or in the alternative with respect to or arising out 11 of the same transaction, occurrence, or series of transactions or occurrences; and [2] any question 12 of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2)(A)–(B). 13 Should Plaintiff file another motion to amend, his attached, proposed, second amended complaint 14 must comply with this rule. 15 B. Motion for Subpoena Duces Tecum 16 Plaintiff moves for a subpoena duces tecum for: (1) dental examination reports, including 17 an account of his tooth extraction; (2) emergency response incident documents; (3) HDSP unit 18 search log; (4) that numerous individuals be called for testimony; and (5) grievance log 19 information. ECF No. 35 at 2–3. Defendants respond that the subpoena duces tecum is improper 20 under Rule 45. 21 Under Federal Rule of Civil Procedure 26, “[e]xcept in a proceeding exempted from 22 initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must 23 confer as soon as practicable—and in any event at least 21 days before a scheduling conference is 24 to be held or a scheduling order is due under .” Fed. R. Civ. P. 26(f). This rule further states that 25 “[a] party may not seek discovery from any source before the parties have conferred as required 26 by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or 27 when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P. 26(d)(1). The 1 set a deadline for the scheduling order (or issued a scheduling order directing the parties to hold 2 one). So, Plaintiff cannot seek discovery at this stage. This Court denies Plaintiff’s motion for 3 subpoena duces tecum without prejudice because it is premature. Should Plaintiff choose to re- 4 file this motion after the parties have had their Rule 26(f) conference, he should carefully review 5 Rule 45 and should meet and confer with Defendants prior to filing. 6 C. Instructions for Filing a Motion to Amend 7 If Plaintiff chooses to file another motion to amend, he must address excusable neglect 8 under Rule 6 and the Ninth Circuit factors under Rule 15. The attached, proposed second 9 amended complaint must contain a short and plain statement describing the underlying case, the 10 defendants’ involvement in the case, and the approximate dates of their involvement as to each 11 claim. See Fed. R. Civ. P. 8(a)(2). The Court will provide him a form so that he can assert each 12 cause of action separately and designate which defendant(s) are responsible as to each cause of 13 action. As discussed above, Plaintiff must comply with Rule 20 as well. The attached, proposed, 14 second amended complaint must be complete in and of itself without reference to prior pleadings 15 or other documents. The Court cannot refer to a prior pleading or other documents to make 16 Plaintiff’s amended complaint complete. Finally, Plaintiff is advised that if he files an amended 17 complaint, the original complaint no longer serves any function in this case. 18 III. CONCLUSION 19 IT IS ORDERED that Plaintiff’s motion to amend (ECF No. 31) is denied without 20 prejudice. 21 IT IS FURTHER ORDERED that Plaintiff’s motion for subpoena duces tecum (ECF 22 No. 35) be denied without prejudice. 23 IT IS FURTHER ORDERED that Plaintiff will have until January 8, 2026, to file a 24 second motion to amend. 25 IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff one copy of this 26 district’s inmate complaint form. 27 IT IS FURTHER ORDERED that Defendants’ answer/responsive pleading to the 1 || order the parties to hold a Rule 26(f) conference and issue a scheduling order within 30 days of 2 || Defendants filing their answer or responsive pleading. 3 4 DATED: November 21, 2025. 5 □□□ rlps ace BREN EKSLER 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28