Calloway v. Veal et al

Filing 53

ORDER DENYING 48 Motion to Amend Complaint, signed by Magistrate Judge Gary S. Austin on 4/2/2012. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JASIMI JERMAINE CALLOWAY,

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Plaintiff,

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1:08-cv-01896-LJO-GSA-PC
ORDER DENYING MOTION TO AMEND
COMPLAINT
(Doc. 48.)

v.
WARDEN M. VEAL, et al.,

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Defendants.
/

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I.

BACKGROUND

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Jasimi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on December 10,

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2008. (Doc. 1.) This action now proceeds on the Third Amended Complaint filed on October 5,

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2009, on Plaintiff’s Eighth Amendment claims, against defendant Dr. Wang for deliberate

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indifference to Plaintiff’s serious medical needs, and against defendants C/O Hayward and C/O Oaks

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for use of excessive force.1 (Doc. 20.) Pursuant to the scheduling order entered on June 14, 2011,

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the deadline for the parties to amend the pleadings was December 14, 2011. (Doc. 31.) Now

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pending is Plaintiff’s motion to amend the complaint, filed on December 27, 2011. (Doc. 48.)

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On March 17, 2011, the Court dismissed all other claims and defendants from this action, under Rule 18(a)
or for Plaintiff’s failure to state a claim. (Doc. 24.)

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II.

MOTION TO AMEND COMPLAINT
Plaintiff seeks leave to file a Fourth Amended Complaint to add five defendants for violation

of his rights to due process, use of excessive force, and failure to provide adequate medical care.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s

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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise,

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a party may amend only by leave of the court or by written consent of the adverse party, and leave

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shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive

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pleading has been served. Therefore, Plaintiff may not file a Fourth Amended Complaint without

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leave of court.

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“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so

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requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)

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(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue

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delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient

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to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d

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708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999))

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Rule 15(a) is further limited by Rule 16. Once a district court has issued a pretrial scheduling

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order pursuant to Rule 16, which establishes a timetable to amend pleadings, that Rule's standards

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control. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-608 (9th Cir. 1992). Thus,

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Plaintiff's ability to amend his complaint is governed by Rule 16(b), not Rule 15(a). See Id. (citing

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Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.1987)) (party seeking to amend pleading after date

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specified in scheduling order must first show “good cause” for amendment under Rule 16(b), then,

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if “good cause” be shown, the party must demonstrate that amendment was proper under Rule 15).

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Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party

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seeking to interpose an amendment and the prejudice to the opposing party, the “good cause”

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standard of Rule 16(b) primarily considers the diligence of the party seeking the amendment. The

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district court may modify the pretrial schedule “if it cannot reasonably be met despite the diligence

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of the party seeking the extension.” Fed. R. Civ. P. 16 advisory committee's notes (1983
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amendment). Moreover, carelessness is not compatible with a finding of diligence and offers no

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reason for a grant of relief. Cf. Engleson v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th

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Cir.1992) (carelessness not a ground for relief under Rule 60(b)); Martella v. Marine Cooks &

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Stewards Union, 448 F.2d 729, 730 (9th Cir.1971) (same), cert. denied, 405 U.S. 974 (1972); Smith

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v. Stone, 308 F.2d 15, 18 (9th Cir.1962) (same).

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The Court set a schedule in this action on June 14, 2011, establishing a deadline of December

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14, 2011, for the parties to amend the pleadings. (Doc. 31.) Thus, Plaintiff's motion to amend his

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complaint, filed after the deadline on December 27, 2011, is untimely. Plaintiff claims that he

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“discovered” the five new defendants by reviewing his Rules Violation Report [RVR-115 form],

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which was brought to his attention by Defendants’ motion for summary judgment. (Reply, Doc. 51

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¶6; Exh. A to lodged Fourth Amended Complaint, Doc. 49 at 13-33.) Plaintiff claims that until

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Defendants filed their motion, he did not have evidence of the five new defendants’ involvement.

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(Reply, Doc. 51 ¶6.)

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The Court has reviewed Plaintiff’s motion and his proposed Fourth Amended Complaint.

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Plaintiff seeks to add defendants C/O R. Mills, C/O T. Sears, Sergeant D. Canales, and Sergeant J.

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Moore, for their participation in the May 7, 2008 assault upon Plaintiff which is the subject of this

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action. Plaintiff alleges that each of these defendants deliberately assisted defendants Hayward and

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Oaks in assaulting Plaintiff by punching him, kicking him, and breaking his hand. Plaintiff also

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alleges that these four defendants denied him medical treatment along with defendant Dr. Wang.

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Plaintiff also seeks to add a fifth defendant, Lieutenant J. Callow, for violating his rights to due

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process by denying Plaintiff his right to question witnesses at his RVR 115 hearing.

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In opposition to Plaintiff’s motion, Defendants argue that it is highly unlikely that Plaintiff

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did not recall that four additional correctional officers participated in the alleged May 7, 2008 attack

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as opposed to the two officers he identified in his Third Amended Complaint. Defendants also argue

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that the due process claim Plaintiff wishes to add is identical to the one that was already dismissed

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by the Court. Defendants argue that the RVR 115 report of June 15, 2008 does not support

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Plaintiff’s new allegations against the five new defendants or his claim of recent discovery of new

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information. Defendants also argue that Plaintiff’s motion should be denied at this late stage of the
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litigation as prejudicial to Defendants, because Defendants have already conducted written discovery

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in this case and responded to Plaintiff’s discovery and motion to compel. Defendants maintain that

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if Plaintiff is allowed to amend the complaint, this lawsuit will be dramatically extended beyond the

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three years it has already lasted, allowing memories to fade even further.

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The Court has examined the RVR 115 report of June 15, 2008 submitted by Plaintiff. (Exh.

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A to lodged Fourth Amended Complaint, Doc. 49 at 13-33.) The report indicates at the bottom of

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each page that a copy of the report was given to Plaintiff on or before June 27, 2008, contradicting

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Plaintiff’s claim that the report was “new” to him when he received a copy of it with Defendants’

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motion for summary judgment served on August 11, 2011. Further, the Court finds no evidence in

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the report that C/O R. Mills, C/O T. Sears, Sergeant D. Canales, or Sergeant J. Moore participated

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in the alleged May 7, 2008 assault against Plaintiff or denied him adequate medical care. Moreover,

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the Court agrees with Defendants that it is highly unlikely that Plaintiff would not have been aware

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until August 2011 that four officers, in addition to the two officers he identified in the Third

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Amended Complaint, participated in the assault against him in May 2008. With respect to the due

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process claim against Lieutenant Callow which Plaintiff seeks to add, the Court dismissed this claim

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on March 17, 2011, and Plaintiff has not shown that he is capable of curing the deficiencies

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previously found by the Court.

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In light of the foregoing, the Court cannot find that Plaintiff has been diligent in amending

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the complaint before the December 14, 2011 deadline in the Court’s scheduling order. Plaintiff has

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already filed four complaints in this action within three years, and his present motion to amend was

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filed after the deadline established by the Court’s scheduling order. Plaintiff has not shown good

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cause for the Court to modify the scheduling order to grant him leave to amend at this stage of the

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proceedings. Therefore, Plaintiff’s motion to amend shall be denied.

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III.

CONCLUSION

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Based on the foregoing, the Court finds that Plaintiff has not shown good cause for the Court

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to allow him to amend the complaint at this time. Therefore, IT IS HEREBY ORDERED that

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Plaintiff's motion to amend, filed on December 27, 2011, is DENIED.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 2, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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