Burnett v. Frayne et al

Filing 100

ORDER by Judge ARMSTRONG denying 95 Motion for Leave to File (lrc, COURT STAFF) (Filed on 2/1/2013)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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OMARR L. BURNETT,

Case No: C 09-4693 SBA (pr)

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Plaintiff,
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ORDER DENYING PLAINTIFF’S
MOTION FOR LEAVE TO AMEND

vs.
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DEPUTY FRAYNE, et al.,
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Defendants.
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Pro se plaintiff Omarr L. Burnett brings the instant action under 42 U.S.C. § 1983

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alleging that his constitutional rights were violated while he was housed at San Mateo

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County Jail (SMCJ) and San Quentin State Prison (SQSP).1 The parties are presently

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before the Court on Plaintiff’s Motion for Order Allowing Amendment. Dkt. 95. Having

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read and considered the papers filed in connection with this matter and being fully

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informed, the Court hereby DENIES the motion. The Court, in its discretion, finds this

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matter suitable for resolution without oral argument. Fed. R. Civ. P. 78(b); N.D. Cal. Civ.

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L.R. 7-1(b).

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I.

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BACKGROUND
The parties are familiar with the facts of this case which are summarized herein only

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to the extent they are relevant to the instant motion. On September 29, 2005, Plaintiff was

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being rehoused to Unit 3 East at SMCJ. During the course of the transfer, Deputies

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Timothy R. Frayne and Chad R. Buck, former SMCJ Deputy Ryan Adler, and SMCJ

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Correctional Officer Catherine Bow allegedly beat Plaintiff without justification, causing

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Plaintiff was in custody when he filed the action; however, he no longer is in
custody.

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him to suffer injuries. Thereafter, Plaintiff was transferred to SQSP. While at SQSP,

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Plaintiff allegedly continued to suffer from the injuries resulting from the September 29

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incident. He accuses SQSP Physician Ericsson of being deliberately indifferent to his

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serious medical needs.

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On April 26, 2010, the Court issued an Order finding that Plaintiff had stated

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cognizable Eighth Amendment claims for the use of excessive force against Defendants

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Frayne, Adler, Buck, and Bow; and for deliberate indifference to serious medical needs

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against Defendant Ericsson. Dkt. 3. The Court subsequently dismissed the action without

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prejudice as to Defendant Ericsson under Federal Rule of Civil Procedure 4(m). Dkt. 21.

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Defendants Frayne, Adler, Buck, and Bow filed an answer to the complaint on January 31,

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2011. Dkt. 39.

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In accordance with the Court’s scheduling order, the remaining Defendants filed a

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motion for summary judgment on May 4, 2011. Dkt. 43. Plaintiff requested and obtained

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several extensions of time to file an opposition to the motion. Dkt. 49, 52, 56. Plaintiff

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eventually filed his opposition on November 14, 2011, Dkt. 59, and later filed a motion for

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leave to amend on February 7, 2012, Dkt. 68. On March 30, 2012, the Court granted

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Defendants’ summary judgment motion as to Defendant Buck only, and denied the motion

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as to Defendants Frayne, Adler and Bow. Dkt. 72. In addition, the Court granted

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Plaintiff’s motion for leave to amend to join SMCJ Deputy Suzanne Blick as a Defendant.

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Id. The Court referred the matter for a settlement conference pursuant to the Court’s

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Prisoner Settlement Program, but the case did not settle. Dkt. 89.

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On November 30, 2012, Plaintiff filed the instant motion to amend the Complaint.

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Dkt. 95. First, Plaintiff seeks to add claims that Defendant Frayne beat him in retaliation

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for expressing his concern that he had enemies in Unit 3 East. Plaintiff also seeks to sue

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the “San Mateo County Medical Department” for improper medical treatment.

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II.

DISCUSSION
Federal Rule of Civil Procedure 15(a)(2) provides that leave to amend a complaint

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should be “freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). Rule 15 “is to

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be applied with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d

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1048, 1051 (9th Cir. 2003). “Four factors are commonly used to determine the propriety of

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a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing

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party, and futility of amendment.” Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007)

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(citations and internal quotation marks omitted). The decision to grant or deny a request for

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leave to amend rests in the discretion of the trial court. See California v. Neville Chem.

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Co., 358 F.3d 661, 673 (9th Cir. 2004).
Plaintiff’s second motion to amend his pleadings is not well taken. Plaintiff now

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claims that at the time of his rehousing on September 29, 2005, he informed Defendant

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Frayne that he had “enemies” in Unit 3 East and for that reason he did not want to be

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housed there. Plaintiff alleges that Defendant Frayne responded that he did not care, and

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then proceeded to beat Plaintiff. Such allegations, however, do not present a new claim for

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relief. Plaintiff does not allege that he suffered any harm as a result of his placement in

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Unit 3 East. Rather, Plaintiff’s allegations merely supply Defendant Frayne’s alleged

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motivation for the attack by Deputy Frayne. Because Plaintiff new allegations do not

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provide the basis for any legal claim for relief, the Court finds Plaintiff’s proposed claim

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against Frayne is futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995) (futility

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alone can justify the denial of leave to amend).

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Plaintiff’s proposed claim against the San Mateo Medical Department fares no

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better. Though not entirely clear, Plaintiff appears to allege that unspecified medical staff

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at the SMCJ failed to provide adequate medical attention at the time of the incident and

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therefore acted with deliberate indifference to his serious medical needs. However,

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Plaintiff clearly knew of such alleged mistreatment when it occurred, and as such, his

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attempt to allege such claim seven years after the fact amounts to undue delay. The claim

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also is time-barred. See Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for
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personal injury claims); TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir.1999) (in

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§ 1983 actions, federal courts borrow from the forum state the statute of limitations

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applicable to personal injury claims and tolling rules, but federal law determines when a

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claim accrued; under federal law, a claim accrues when the plaintiff knows or has reason to

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know of the injury which is the basis of the action). Timing issues aside, Plaintiff has

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failed to present a “plausible” claim for relief, given his failure to identify any of the staff

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members involved, the specific conduct at issue or any facts demonstrating that any of the

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medical staff at SMCJ acted with deliberate indifference. See Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 570 (2007) (holding that a pleading must allege “enough facts to state a

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claim to relief that is plausible on its face.”).

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III.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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Plaintiff’s motion for leave to amend is DENIED.

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2.

This Order terminates Docket 95.

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IT IS SO ORDERED.

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Dated: January 30, 2013

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

OMARR L. BURNETT,

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Plaintiff,

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v.
FRAYNE et al,
Defendant.
/

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Case Number: CV09-04693 SBA

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CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on February 1, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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O’Marr L. Burnett
9949 Lawlor Street
Oakland, CA 94605

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Dated: February 1, 2013

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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N:\Keith\Odd Cases\09-4693 - Burnett - Order denying motion to amend complaint.docx

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