Rapalo v. Lopez, et al.
Filing
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ORDER DENYING Plaintiff's 52 Motion for Leave to Amend and File a Second Amended Complaint signed by Magistrate Judge Barbara A. McAuliffe on 4/9/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WALTER RAPALO,
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Plaintiff,
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v.
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S. LOPEZ, et al.,
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Defendants.
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Case No.: 1:11-cv-01695-LJO-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
LEAVE TO AMEND AND FILE A SECOND
AMENDED COMPLAINT
(ECF No. 52)
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I.
Procedural Background
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Plaintiff Walter Rapalo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
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in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendants
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Lopez, Schaefer and Manasrah for deliberate indifference to serious medical needs in violation of the
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Eighth Amendment.1
On February 19, 2014, the Court issued a Discovery and Scheduling Order. Pursuant to that
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order, the deadline to amend pleadings was August 19, 2014. (ECF No. 27.)
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On March 6, 2015, Plaintiff filed a motion for leave to file an amended complaint. Plaintiff
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also lodged his proposed second amended complaint. (ECF Nos. 51, 52.) Defendants opposed the
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Defendant Schaefer was erroneously sued as “Schaffer.”
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motion on March 24, 2015. (ECF No. 53.) No reply was filed and the motion is deemed submitted.
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Local Rule 230(l).
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II.
Discussion
A. Proposed Amendment
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Plaintiff seeks to amend his complaint to add an Eighth Amendment deliberate indifference
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claim against the California Department of Corrections and Rehabilitation (“CDCR”). (ECF No. 52,
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p. 2.)
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B. Legal Standard
As Plaintiff’s request to amend is after expiration of the Scheduling Order deadline for
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amendment of pleadings, the Court must apply the standard for amending a scheduling order under
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Federal Rule of Civil Procedure 16, rather than the liberal amendment standard of Rule 15. Coleman
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v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000) (district court correctly addressed motion
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for leave to amend under Rule 16 because it had issued a pretrial scheduling order that established a
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timetable for amending the pleadings and the motion was filed after the deadline had expired).
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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the
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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the
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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
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609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot reasonably be
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met despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the
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inquiry should end. Id.
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Here, Plaintiff’s attempt to amend is untimely. Further, there is no indication that Plaintiff was
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diligent in seeking amendment. Plaintiff made no effort to add his proposed cause of action against
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CDCR prior to the relevant deadline to amend the pleadings in August 2014. Although Plaintiff
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contends that he discovered the potential claim against CDCR based information obtained through
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discovery, which is ongoing, his proposed amendment is nonetheless futile. The Eleventh
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Amendment erects a general bar against federal lawsuits brought against the state. Wolfson v.
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Brammer, 616 F.3d 1045, 1065-66 (9th Cir. 2010) (citation and quotation marks omitted). While
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“[t]he Eleventh Amendment does not bar suits against a state official for prospective relief,” Wolfson,
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616 F.3d at 1065-66, suits against the state or its agencies are barred absolutely, regardless of the form
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of relief sought, e.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900
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(1984); Buckwalter v. Nevada Bd. of Medical Examiners, 678 F.3d 737, 740 n.1 (9th Cir. 2012).
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Thus, Plaintiff may not maintain a claim against CDCR. Therefore, any amendment is futile.
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III.
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For the reasons stated, Plaintiff’s motion for leave to file an amended complaint is HEREBY
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Conclusion and Order
DENIED.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 9, 2015
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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