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DOE v. LAWRENCE LIVERMORE NATL. LAB.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


March 25, 1993

DR. JOHN DOE, Ph.D., Plaintiff,
v.
LAWRENCE LIVERMORE NATIONAL LABORATORY, ET AL., Defendants.

The opinion of the court was delivered by: STANLEY A. WEIGEL

MEMORANDUM AND ORDER

 I. BACKGROUND

 Plaintiff Dr. John Doe, Ph.D., alleges that he was offered, and in June of 1991 accepted, a position as physicist with the Defendant Lawrence Livermore National Laboratory ("LLNL"). *fn1" The offer for employment included a salary of $ 6100.00 per month and a requirement that Plaintiff obtain a security clearance from the U.S. Department of Energy ("DOE"). Plaintiff further alleges that after he accepted the employment offer, Defendants attempted to withdraw the offer because LLNL and its personnel concluded that Plaintiff could not obtain a DOE security clearance.

  On October 22, 1992, Plaintiff filed his first amended complaint, alleging breach of employment contract and violation of security regulations, under 42 U.S.C. ยง 1983 ("Section 1983 claim"). On February 5, 1993, upon motion by Defendants, the Court dismissed all claims against Defendant David Gardner; *fn2" the breach of contract claim against Defendant John Nuckolls; *fn3" and the Section 1983 claim against Defendants University of California, LLNL, Clark Groseclose, Robert Perret, Robert Perko, *fn4" and Nuckolls in his official capacity.

 Plaintiff moves for leave to amend his complaint and for reconsideration of part of the Court's February 5, 1993 Order. Defendants oppose the motions.

 II. DISCUSSION

 On February 5, 1993, the Court granted Defendants' motion to dismiss the Section 1983 claim against Nuckolls in his official capacity. In so ruling, the Court stated that:

 

One exception to the rule disallowing Section 1983 claims against persons sued in their official capacities is where the plaintiff seeks prospective injunctive relief. This exception is not applicable here, however, because Plaintiff has not prayed for such relief.

 February 5, 1993 Memorandum and Order, at n.7 (citation omitted) (emphasis added).

 Plaintiff moves for leave to amend the complaint to add a claim for prospective injunctive relief so that Nuckolls, in his official capacity, can be reinstated. In light of the motion to amend, Plaintiff moves for reconsideration of the dismissal of the Section 1983 claim against Nuckolls in his official capacity. *fn5"

 A. Motion for Leave to Amend

 A party may amend its pleading by leave of court, and "leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Leave to amend should be granted unless it is clear that the complaint cannot be saved by any amendment. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 541 (9th Cir. 1984); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

 Defendants contend that leave to amend should not be granted because Plaintiff cannot possibly cure the deficiency of his complaint. Specifically, Defendants assert that although Plaintiff's proposed second amended complaint purports to seek prospective injunctive relief, the relief is, in fact, compensation for Plaintiff's alleged past injury, and is therefore not prospective. *fn6" Therefore, Defendants contend, the Section 1983 claim cannot, as a matter of law, be brought against Nuckolls in his official capacity. See Papasan v. Allain, 478 U.S. 265, 277-78, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Green v. Mansour, 474 U.S. 64, 68, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985).

 Defendants are correct that an injunction which would require Nuckolls to employ Plaintiff at LLNL is not prospective relief because such relief relates solely to an alleged past violation of federal law. See Papasan, 478 U.S. 277 at 277-78; Green, 474 U.S. at 68. However, Plaintiff asserts that it also seeks to enjoin Defendants' conduct as it applies to future applicants for employment with LLNL. *fn7" Because the Court's prohibition of this conduct would constitute prospective injunctive relief, Plaintiff might be able to amend the complaint to state facts which support a Section 1983 claim against Nuckolls in his official capacity. Accordingly, Plaintiff must be granted leave to amend. See Robertson, 749 F.2d at 541.

 B. Motion to Reconsider

 Because Plaintiff has not yet filed a second amended complaint, it is premature for the Court to determine whether it states a claim upon which relief can be granted against Nuckolls in his official capacity. Accordingly, Plaintiff's motion to reconsider must be denied without prejudice.

 Accordingly, IT IS HEREBY ORDERED that:

 (1) Plaintiff's Motion for Leave to File Second Amended Complaint is GRANTED; and

 (2) Plaintiff's Motion to Reconsider Order on Motion to Dismiss is DENIED, without prejudice.

 Dated: March 25, 1993

 Stanley A. Weigel

 Judge


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