Kinkeade v. Beard et al

Filing 55

ORDER signed by Magistrate Judge Carolyn K. Delaney on 04/10/17 denying 47 Motion for extension of time to amend and denying 53 motion to amend. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLOS KINKEADE,

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Plaintiff,

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No. 2:15-cv-1375 TLN CKD P

v.

ORDER

JEFFERY BEARD, et al.,

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Defendants.

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Plaintiff, a state prisoner, commenced this civil rights action pro se in June 2015. (ECF

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No. 1.) On December 1, 2016, he obtained counsel. (ECF No. 30.) On December 22, 2016, the

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court adopted a jointly-proposed schedule in which the deadline to amend the pleadings was April

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1, 2017. (ECF No. 33.) Subsequently, plaintiff was deposed and certain discovery requests were

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deemed admitted. On February 23, 2017, plaintiff filed a motion for relief from the deemed

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admissions. (ECF No. 42.)
On March 23, 2017, while that motion was pending, plaintiff filed a motion for extension

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of time to amend the complaint, seeking a new deadline of “two weeks after the Court files the

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decision on Plaintiff’s motion for relief from admissions, or April 14, 2017, whichever is longer.”

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(ECF No. 47.) That motion is now fully briefed (ECF Nos. 48 & 49) and before the court.

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Plaintiff has also filed a Notice of Motion to Amend (ECF No. 53).

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I. Motion to Extend Deadline to Amend
Plaintiff asserts that he “has sound facts on which to base a cause of action for retaliation.”

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(ECF No. 47 at 2.) He “intends to file a motion to amend the complaint to add a cause of action

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for retaliation which is supported in the facts of the operative complaint.” (Id. at 1.) Plaintiff

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asserts that such amendment is not possible without a ruling on his motion seeking withdrawal of

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the deemed admissions, all of which concern plaintiff’s Eighth Amendment claims. (Id.)

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Defendant opposes the motion to modify the jointly-agreed deadline for amendment. She

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asserts that plaintiff’s counsel did not comply with Local Rule 144(c) and made no attempt to

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secure a stipulation to extend time to amend. Plaintiff’s counsel counters that he discussed the

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extension with defense counsel in the context of other proposed changes to the joint schedule, but

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they could not reach agreement. Plaintiff adds that he seeks to modify the schedule pursuant to

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Rule 16 of the Federal Rules of Civil Procedure.

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Under 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

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604, 609 (9th Cir. 1992). The district court may modify the scheduling order “if it cannot

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reasonably be met despite the diligence of the party seeking the extension.” Id.

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Here, plaintiff’s counsel does not explain why he failed to evaluate possible additional

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claims prior to agreeing to a joint schedule in December 2016 or in the three months that

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followed. He does not point to new facts obtained in discovery that support a retaliation claim,

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but to “the facts of the operative complaint.” Plaintiff’s pro se complaint alleges that, after the

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February 2013 incident with defendant Oddie, plaintiff filed a complaint against her, which was

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denied; and in June 2013, Oddie repeated the behavior, causing worse injury to plaintiff than

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before. (ECF No. 1, ¶¶ 33-41, 43-50.) These allegations were known to plaintiff’s counsel in

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December 2016, yet he did not timely move to amend. Plaintiff counsel’s assertion that he could

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not move to amend while a discovery motion was pending is unconvincing.

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In the absence of a showing of diligence, the court does not find good cause to modify the
agreed-upon April 1, 2017 deadline for amending the pleadings and will deny the motion.
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II. Motion to Amend
On March 30, 2017, plaintiff filed a two-page Notice of Motion to Amend which states:

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“Additional causes of action are found in the facts alleged. Several factual allegations are

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misstated and require corrections.” (ECF No. 53.) Neither Points and Authorities nor a proposed

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amended complaint are included with this filing.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be given

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freely when justice requires. In deciding whether justice requires granting leave to amend, factors

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to be considered include the presence or absence of undue delay, bad faith, dilatory motive,

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repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing

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party, and futility of proposed amendment.
Here, plaintiff does not attach a proposed amended complaint as required by Local Rule

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137(c). In the absence of any reviewable pleading, the court does not find that justice requires

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leave to amend in this instance.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for extension of time to amend (ECF No. 47) is denied; and

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2. Plaintiff’s motion to amend (ECF No. 53) is denied.

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Dated: April 10, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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