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United States District Court, N.D. California

January 21, 2004.

DAVID BURROWS, et al., Plaintiffs
ADVENTIST HEALTH INC., et al., Defendants

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

Now before the Court are several motions: (i) plaintiffs' motion to dismiss the lawyer-defendants (LynchGilardi & Grummer, Robert Lynch and Matthew Miller) from the complaint; and (ii) various defendants' motions to dismiss plaintiffs' current action. On September 26, 2003, this Court heard argument on defendants' 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. At that time, the Court gave both parties an opportunity to resolve the procedural conflict posed in the current action for an ongoing case involving plaintiffs, defendant Schug and his counsel, Robert Lynch and Matthew Miller of Lynch Gilardi & Grummer. See Burrows v. Redbud Cmty, Hosp., C-96-4345 SI, (N.D. Cal. filed Dec. 3, 1996) ("Burrows I"). In order to remedy this procedural conflict, plaintiffs filed their motion to dismiss the lawyer-defendants. Finding that the resolution of this motion will not adequately remedy the procedural conflicts between this case and the earlier filed case, the Court finds it necessary to address and resolve defendants' earlier motion regarding the merits of plaintiffs' claims at this time.

Having carefully considered the papers submitted and the arguments of counsel, the Court GRANTS defendants' motions to dismiss plaintiffs' actions for failure to state a claim upon which relief can be granted.


  Plaintiffs filed this action on May 13, 2003, seeking monetary damages and injunctive relief against Page 2 defendants for their alleged illegal conduct in conspiring to deny plaintiffs their civil rights by, inter alia, fraudulently altering medical records and obstructing justice in plaintiffs' attempts to seek redress for the wrongful death of their infant son, Cody Burrows. Below is a detailed discussion of the factual and procedural background of both the present case and Burrows I, on which the current action is based.

  I. Burrows I

  A. Factual background

  This actionarose out of the death of Cody Burrows, an eleven-month old infant, on February 26, 1996. Order, C-96-4345 SI, at 1-2 (filed Oct. 22, 1997). Plaintiffs David Burrows and Rhoda Thomas, the parents of Cody Burrows, alleged the following facts and incidents in their complaint: On February 23, 1996, plaintiffs took Cody to the emergency department of Redbud Community Hospital in Clearlake, California, for care and treatment of their son. Id. Cody was examined at the hospital and subsequently released. Id. On February 25, 1996, in the early morning hours, plaintiffs brought Cody back to Redbud Community Hospital because he was still ill. Id. Plaintiffs alleged that doctors failed to perform an appropriate or competent screening exam, failed to render competent medical care, and discharged Cody notwithstanding his unstable condition. Id.

  On February 25, 1996, at about 11 a.m., plaintiffs returned with Cody to Redbud Community Hospital for further care and treatment. Id. Medical records showed that Cody was dehydrated and his fever ranged from 101 to 105 degrees. Order, C-96-4345, at 2 (filed Nov. 10, 1999). Attempts to administer fluids intravenously, through both his femoral and jugular veins, were unsuccessful Id. Throughout his stay in the emergency room, Cody continued to vomit, and ingested only three ounces of Pedialyte fluid. At 7:00 p.m., Cody's chart indicated that he "remain[ed] very lethargic." Id. After nearly eight and a half hours in the emergency room and no apparent improvement, Cody was discharged by the hospital. Plaintiffs were given a map and told to take Cody to Santa Rosa Community Hospital, a drive of over two hours. Id. When plaintiffs arrived at Santa Rosa, Cody was no longer breathing. Id. A few hours later, after being transferred to the University of California Medical Center in San Francisco, Cody died of a cardiac arrest. Id.

  The following day, February 27, 1996, Nurse DeLashmutt, an employee of Redbud Hospital, recorded additional notations on Cody's chart, one stating that he was "active in the sink . . . drinking [water] from the Page 3 faucet . . ." Id. Also that day, Dr. Schug composed an addendum to Cody's medical records, describing the child's treatment. Id. To prepare this addendum, Dr. Schug copied notes in pencil from Cody's chart to yellow post-it slips, which he took home with him. Id. He drafted in his own handwriting and also dictated the addendum, added it to Cody's medical records, and destroyed the yellow notes and draft addendum by burning them. Id. Dr. Schug's addendum described Cody as active, "playful," and "splashing" in a bath. These descriptions appeared to contradict most contemporaneous descriptions of the child as listless and tired. Id.

  B. Procedural history

  On December 2, 1996, plaintiffs filed a complaint in federal court against: Dr. Wolfgang Schug, a doctor on call with the emergency room at Redbud Community Hospital who examined Cody; Dr. M. Fred Brewer, a pediatrician on call and available for consultation with the emergency room at Santa Rosa who examined Cody; Redbud Community Hospital District ("Redbud"/"District"), the owner and operator of Redbud Community Hospital; Emergency Medical Management Services, Inc.; and unnamed physicians, nurses, and health care professionals who, plaintiffs allege, negligently treated Cody prior to his death. The original complaint alleged negligence, spoliation of evidence, and violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd, and Cal. Health & Safety Code § 1317. Order, C-96-4345 SI, Oct. 22, 1997 at 2.

  On January 24, 1997, plaintiffs filed an amended complaint, naming as an additional defendant Adventist Health, Inc. ("Adventist Health") and substituting J. J. & R. Emergency Management Group, Inc. ("J. J. & R.") in lieu of Emergency Medical Management Services, Inc. The first amended complaint alleged the following causes of action: Count One (EMTALA), Count Two (EMTALA — emotional distress), Count Three (wrongful death), Count Four (wrongful death — emotional distress), Count Five (personal injuries — claim brought on behalf of Cody Burrows), Count Six (spoliation of evidence), Count Seven (Cal. Health & Safety Code § 1317), Count Eight (Cal. Health & Safety Code § 1317 — emotional distress), and Count Nine (injunctive relief). Defendants filed separate answers to the first amended complaint in March 1997.

  Plaintiffs amended the initial complaint twice more during the pleading stage. The third amended Page 4 complaint, most relevant to the case at hand, was filed by plaintiffs on June 23, 1998.*fn1 By order dated March 24, 1999, this Court dismissed Count Six of plaintiffs' third amended complaint, which was captioned "violation of Cal. Penal Code § 471.5, obstruction of justice and conspiracy." Order Re: Mots. Concerning Third Am. Compl. at 2:2-4, C-96-4345 SI (March 24, 1999). This count substituted for what had previously been charged as "spoliation of evidence, obstruction of justice and conspiracy" in the Second Amended Complaint. Id. at 2:3-5. The Court found that under the circumstances of the case, plaintiffs did not and could not state a private cause of action premised on Penal Code § 471.5, because no private right was included by the Legislature when it enacted the statute. 14 at 2:13-14, The Court dismissed Count Six of the Third Amended Complaint and struck the accompanying allegations as unnecessary to the remaining causes of action. Id. at 2:19-21.

  Plaintiffs filed a Fourth Amended Complaint on July 6, 1999, in which they set forth Count Six for the sole purpose of preserving the cause of action and the allegations for possible appeal. Plaintiffs did appeal this case to the Ninth Circuit in David Burrows v. Redbud Community Hospital, 34 Fed. Appx. 363, 2002 WL 857873 (9th Cir. 2002). The status of the case at the time of appeal was as follows:

  On June 17, 1998, Dr. Brewer was dismissed from this case. Order, C-96-4345 SI, at 1-2 (filed July 23, 2003). On March 17, 1999, this Court granted summary judgment in favor of defendant J.J. & R. on the grounds that it was not liable vicariously, directly under statute, or under theories of general negligence. 14. This Court also granted summary judgment in favor of defendant Adventist Health, Inc. on the grounds that it was not liable directly or vicariously. Id. On March 21, 2000, this Court granted summary judgment in favor of defendant Adventist Health, Inc. on the grounds that it did not have successor liability to Redbud Community Hospital. On March 22, 2000, this Court granted plaintiffs' motion for voluntary dismissal of their claims against the Redbud Community Hospital District with prejudice. 14 Plaintiffs no longer had pending EMTALA claims because the remaining defendant, Dr. Schug, is not a "hospital" as defined under EMTALA. 42 U.S.C. § 1395dd. Id. Likewise, plaintiffs no longer had pending § 1317 claims because Dr. Schug is not a "healthcare facility" under thatstatute. However, this Court retained jurisdiction of the remaining state law claims. Id. citing Page 5 Order Den. Defs.' Mot. to Dismiss State Claims, May 8, 2000. The Redbud District settled with plaintiffs for $750,000. Burrows, 34 Fed. Appx. 363, 364, 2002 WL 857873 at * 1. Plaintiffs' settlement with the District also dismissed David Burrows' claim of emotional distress against all defendants with prejudice. Order, C-96-4345 SI, at 2 (filed July 23, 2003). Thereafter, Thomas emotional distress claim and the two plaintiffs' shared wrongful death claim against Dr. Schug were tried to a jury, which returned a defense verdict on July 12, 2000. Id.

  Plaintiffs appealed a number of this Court's rulings in Burrows I. See Burrows. 34 Fed. Appx. 363, 2002 WL 857873. With respect to defendant Schug, plaintiffs argued that the expert testimony and evidence presented "required the jury to conclude that Schug was negligent on ten different violations of the standard of care. They also argued that the district court was wrong to grant summary judgment motions finding that: (1) JJ & R was not liable vicariously, directly under statute, or under theories of general negligence; (2) Adventist was liable neither directly nor vicariously; and (3) Adventist did not incur successor liability when it purchased Redbud Hospital. Finally, they argue[d] that an obstruction of justice claim, which they recharacterize[d] as §§ 1983 and 1985 claims, should not have been dismissed; and they argue[d] that the district court abused its discretion in denying a new trial." Id. 34 Fed. Appx. at 364-5, 2002 WL 857873 at * 1. The Ninth Circuit Court of Appeals affirmed this Court on all but one claim. It found that Dr. Schug had been negligent as a matter of law, and reversed the jury's verdict and remanded for a new trial as to Dr. Schug; its mandate issued July 1, 2002. Id. The matter is now pending for retrial on the questions of causation and damages.

  2. Burrows II: Defendants' motion to dismiss for failure to state a claim

  On May 13, 2003, while awaiting retrial against defendant Schug, plaintiffs brought the current action, Burrows v. Adventist Health, et al, No. C-03-2228 ("Burrows II"), claiming that defendants conspired to deny plaintiffs their civil rights in violation of 42 U.S.C. § 1983, 1985, and 1986. The fifteen defendants in this action are as follows: Adventist Health, Inc. ("Adventist"), joint operator of Redbud Community Hospital; Donald R. Ammon ("Ammon"), executive vice president of Adventist; Michael Schultz ("Schultz"), vice president of Adventist; J. J. & R. Emergency Medical Group of California, Inc. ("J.J. & R."); Adventist-Redbud Hospital, Inc. ("Adventist-Redbud"); Physicians Insurance Company ("Physicians Ins. Co."); Doctors Page 6 Insurance Company ("Doctors Ins. Co."); Lynch Gilardi & Grummer ("LG & G"), Robert Lynch, Esq. ("Lynch") and Matthew Miller, Esq. ("Miller"), attorneys for defendant Schug in Burrows I; Mark Freeman, M.D. ("Freeman"), Chief of Staff and Chairman of the Executive Committee at Redbud Hospital; Barry Staum, M.D. ("Staum"), president of J.J. & R.; Wolfgang Schug, M.D. ("Schug"); Bruce Deas, M.D. ("Deas"), a licensed California physician who served as an expert witness for defendants J.J. & R. and Schug in Burrows I; and Steven Schepper ("Schepper"), vice president of J.J. & R.

  Plaintiffs brought suit for monetary damages and injunctive relief against defendants for conspiring to deny plaintiffs civil rights by, among other things, "fraudulently altering medical records and obstructing justice in plaintiffs' attempts to seek redress in the courts of the United States." Compl. at ¶ 1. Plaintiffs allege that the Redbud Community Healthcare District ("District"), a duly-constituted California governmental entity, "performed and acted under color of law." Id. at ¶ 5. Other defendants — Adventist-Redbud, Adventist, Ammon, Schultz, J.J. & R, Staum, Schepper, Schug, and Freeman — are alleged to have colluded with the District and, as co-conspirators, also acted under color of law. Id. at ¶¶ 5-8.*fn2 Plaintiffs allege that, as an expert witness for defendants J.J. & R. and Schug, Deas "gave false testimony and otherwise acted in violation of Federal Rule of Civil Procedure 26," governing discovery and disclosure. Id. at ¶ 10. Doctors Ins. Co. and Physicians Ins. Co. were the liability carriers for Schug, J.J. & R., Adventist and Adventist-Redbud. As such, they "became aware of the acts, errors, omissions and conspiracies on the part of the other defendants alleged herein and were in a position, but failed, to prevent the civil rights conspiracy violations set forth" in plaintiffs' complaint. Id. at ¶ 11.

  Defendants Doctors Ins. Co., LG&G, Lynch, Miller, Staum, Schug, Deas, and Schepper, later joined by J.J. & R ("Doctors Ins. Co., et al."), filed motions to dismiss, arguing that (i) plaintiffs have failed to state a cause of action under §§ 1983, 1985, and 1986; and (ii) plaintiff's' claims for relief are all barred by the statute of limitations. See Mot. to Dismiss filed by Doctors Ins. Co., et al. Defendant Mark Freeman brought Page 7 a motion to dismiss arguing that plaintiffs' action is barred by the statute of limitations. See Mot. to Dismiss filed by Freeman. Defendants Adventist Health, Adventist-Redbud, Ammon, and Schultz ("Adventist Health, et al.") filed a motion to dismiss arguing that (i) res judicata bars plaintiffs from relitigating the claims presented in this action and (ii) plaintiffs' claims are barred by the statute of limitations. See Mot. to Dismiss filed by Adventist Health, et al.

  3. Plaintiffs' motion to dismiss the lawyer-defendants

  The filing of this action, i.e., Burrows II, has effectively stalled the progress of Burrows I, because plaintiffs have sued Schug, the remaining defendant in Burrows I. as well as his counsel Lynch and Miller, and their firm LG&G. Plaintiffs have attempted to remedy this by dismissing LG&G, Lynch and Miller. All defendants except the Adventist Health defendants oppose plaintiffs' motion to dismiss, arguing that "the proposed dismissal does not obviate the potential conflicts of interest facing the lawyer defendants in the Burrows I matter and would result in impermissibly splitting plaintiffs' cause of action in Burrows II and omission of necessary parties." Defs.' Opp'n at 2:20-22. These latter defendants argue for denial of plaintiffs' motion to dismiss and for the Court to proceed to hear defendants' 12(b)(6) motions. The Court agrees. For the sake of judicial economy, the Court addresses all of defendants' Federal Rule of Civil Procedure 12(b)(6) motions to dismiss at this time.


  Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012 (1984).

  In answering this question, the Court must assume that the plaintiff's allegations are true and must draw Page 8 all reasonable inferences in the plaintiff's favor See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).

  If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).


  Three issues are raised by defendants' motions to dismiss: (i) whether plaintiffs state a claim under 42 U.S.C. § 1983, 1985, and 1986; (ii) whether res judicata bars plaintiffs from litigating the claims in the present action; and (iii) whether plaintiffs' action is barred by the one-year statute of limitations.

  1. Failure to state a claim under 42 U.S.C. § 1983, 1985, and 1986

  A. Count One, plaintiffs' claim for relief under 42 U.S.C. § 1983, fails to allege that defendants acted under color of state law

  Count One of plaintiffs' complaint states a claim under 42 U.S.C. § 1983 and alleges, in relevant part, the following: (i) the District (a duly-constituted California governmental entity), Adventist, Ammon, Schultz, Freeman, J.J. & R., Schepper, and Schug "came to an understanding and conspired to, cover up and withhold 26 from plaintiffs the true facts and evidence of Cody's care," Compl. at ¶ 21; (ii) the District and defendants Adventist, Physicians Ins. Co., Doctors Ins. Co., J.J. & R., Schug, LG & G, Lynch and Miller jointly agreed "to suppress evidence relevant to the allegations specifically set forth by plaintiffs in their Complaint and First Page 9 Amended Complaint in Case No. 4345 by failing to disclosure (sic) material documents and witnesses under FRCivP (sic) 26," Compl. at ¶ 30; (iii) the District and defendants Adventist, Physicians Ins. Co., Doctors Ins. Co., J.J. & R., Schug, LG & G, Lynch and Miller jointly agreed "to suppress evidence by withholding and failing to produce documents relative to and properly called for in plaintiffs' FIRST and SECOND REQUESTS FOR PRODUCTION OF DOCUMENTS by the assertion of false and groundless objections and claims of privilege without identifying the documents so as to enable plaintiffs to challenge the validity of such claims," Compl. at ¶ 31; (iv) defendants Doctors Ins. Co., J.J. & R., Schug, LG & G, and Lynch "offered and suborned false deposition testimony by defendant Schug, and thereafter all defendants named herein adopted and ratified that conduct in their litigation defense of Case No. 4345," Compl. at ¶ 32; and (v) defendant Adventist Redbud, in furtherance of the conspiracy, "destroyed the original, albeit false, documents constituting Cody's medical records," Compl. at ¶ 36.

  Defendants argue that plaintiffs have not, and cannot, adequately allege that defendants acted under color of state law. Doctors Ins. Co.'s Mot. to Dismiss at 3:15. Further, the allegations made against defendants do not amount to a violation of plaintiffs' civil rights, but are discovery abuses more properly addressed by Federal Rule of Civil Procedure 26, governing discovery and duty of disclosure, and perjury. Defendants argue that with respect to the alleged facts of destruction, suppression, fraudulent alteration of material evidence and perjury the defendants were acting "in their capacities as defined by their roles in litigation . . . and not clothed with the power of the state." Id. at 4:26-28, 5:1-2.

  Plaintiffs respond that "it is well settled that private individuals and entities are subject to civil rights liability when they act jointly or in conspiracy with governmental entities/actors to deny citizens' civil rights." Pls.' Mem. in Opp'n at 8:15-19, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598 (1970); Dennis v. Sparks, 449 U.S. 24. 101 S.Ct. 183 (1980); United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539 (9th Cir. 1989). This statement of the law is unhelpful, however, since plaintiffs allege no facts to demonstrate the specific manner in which the District and its alleged co-conspirators acted under state law to deprive plaintiffs of their civil rights during the course of litigating Burrows I. An action is considered to be taken "under color of state law if there is a "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, Page 10 313 U.S. 299, 326, 61 S.Ct. 1031, 1043 (1941). Nothing of that sort is alleged here. Although "[p]rivate persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of § 1983 actions." Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989), it is still necessary that the state actor — here, the District — be acting "`under color" of law in taking the actions alleged . Plaintiffs have failed allege actions constituting a misuse of power made possible by authority of state law.

  Nor would amendment be fruitful. The actions about which plaintiffs complain do not arise to a deprivation of their civil rights. The Court agrees with defendants that the violations alleged are defined by and within the boundaries of the parties' various roles in litigation, and should be addressed and remedied, if at all, in that context. Plaintiffs have failed to state an actionable claim under § 1983.

  B. Count 2, plaintiffs' claim under 42 U.S.C. § 1985(2), part 1, fails to state a cause of 12 action

  42 U.S.C. § 1985(2), part 1*fn3, provides in pertinent part:

If two or more persons in any State or Territory conspire to deter, by force, intimidation or threat, any party or witness in any court of the Untied States from attending such court, or from testifying to any matter pending therein, freely, fully and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
  Here, there are absolutely no allegations that parties or witnesses in the underlying suit were intimidated or threatened against testifying. In the absence of allegations of force, intimidation or threat, the Court concurs with defendants and finds no proper cause of action under § 1985(2), part 1.


C Count 4, plaintiffs claim under 42 U.S.C. § 1985(3), fails to state a cause of action*fn4
  Plaintiffs allege, in Count 4, that "defendants entered into and carried out the above alleged conspiracy Page 11 and performed the above alleged acts with the purpose and intent of denying plaintiffs equal privileges and immunities under the law." Compl. at ¶ 45. The statute referred to in Count 4, however, is 42 U.S.C. § 1985(3), which requires "that there must be some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798 (1971).

  Defendants move to dismiss this claim because plaintiffs did not allege any facts supporting racial or class based animus for purposes of this claim. Plaintiffs respond by importing a conclusory allegation from the now-dismissed Count Three, to the effect that defendants acted out of "animus toward plaintiffs and their rights because they were Native Americans and were therefore perceived by defendants to be financially and socially irresponsible." Compl. at ¶ 42. This allegation, which was not even intended to be part of the specific allegations supporting Count 4, contains no facts which would support an assertion of racial or class-based motivation on defendants' part. Nor do the other paragraphs of the complaint, which contain the lengthy specific factual contentions being made, contain any facts which would suggest racial or class-based animus.

  Since the underlying actions of all the parties have already been fully explored in connection with the extensive pretrial activity and jury trial in Burrows I, this Court has heard what evidence there is and is confident that plaintiffs did not make such allegations because they cannot make them: no evidence of racial or class-based bias has emerged during the over seven years that these parties have been in litigation with one another. Although plaintiffs request leave to amend, under these circumstances the Court finds that leave to amend would be futile. This claim will be dismissed.


D. Count 5, plaintiffs' claim under 42 U.S.C. § 1986, fails for lack of a valid claim under 42 U.S.C. § 1985
  42 U.S.C. § 1986 provides that "Every person, who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same or refuses so to do, if such wrongful act be committed, shall be liable to the party injured . . ." Defendants correctly cite Hahn v. Sargent, 388 F. Supp. 445, 449-450 (D.Mass. 1975), which states that "[section 1986] creates an additional cause of action for Page 12 refusal to take affirmative action in certain circumstances to prevent the commission of an act giving rise to a claim under § 1985. No claim lies under § 1986, however, except on the basis of a valid claim under § 1985." Id.

  The requirements of § 1986 are unambiguous. The Court has found no valid claims under § 1985 and therefore cannot grant relief under § 1986.


E. Count 6, alleging violations of 42 U.S.C. § 1983, 1985 and 1986, fails to state a claim
  For the same reasons that Counts 1 through 5 fail to state claims, so does Count 6.

  2. Res judicata and the statute of limitations

  Defendants Adventist Health, Adventist-Redbud, Ammon, and Schultz contend that plaintiffs' statutory claims in Burrows II would, in any event, be barred by res judicata because it involves the same parties, the same claims and was finally disposed of, on the merits, in these defendants' favor. Moreover, with respect to the civil rights claims, the Ninth Circuit deemed these claims waived as to all defendants. See Burrows v. Redbud Cmty. Hosp. Dist., 34 Fed.Appx. 363, 366, 2002 WL 857873 at *3 (9th Cir. 2002)("since petitioners raise these [§ 1983 and 1985] claims for the first time on appeal, we consider them waived."). In fact, these claims are parallel to the California state law claims that this Court dismissed in its order on the motions concerning the third amended complaint. See Order, May 24, 1999 (plaintiffs' claims of violation of Cal. Penal Code § 471.5, obstruction of justice and conspiracy, a count substituting for what was charged as "spoliation of evidence, obstruction of justice and conspiracy" in the Second Amended Complaint). The Court finds these arguments persuasive, and they provide another reason to dismiss the claims as to these moving defendants

  All defendants argue that this action is time barred, having been filed some seven years after plaintiffs filed their initial complaint and two and a half years after judgment was entered in the underlying action. Plaintiffs respond that these claims did not accrue until final judgment in Burrows I was rendered, in July, 2002. See Delew v. Wagner, 143 F.3d 1219 (9th Cir. 1998); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 (9th Cir. 1988). Given the peculiar procedural posture of this action, it is not clear when the statute of Page 13 limitations did begin running or whether it was tolled at any point. Since the claims have all been dismissed, however, resolution of this question at this time is moot.

  3. Leave to amend

  Federal Rule of Civil Procedure 15 governs the amendment of complaints. It states that if a responsive pleading has already been filed, the party seeking amendment "may amend the party's pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Court may deny amendment under Rule 15(a) "when amendment would be clearly frivolous, unduly prejudicial, cause undue delay or a finding of bad faith is made." United Union of Roofers v. Ins. Co. of America, 919 F.2d 1398, 1402 (9th Cir. 1990). A Court may also deny amendment if that amendment would be futile, or if there have been previous unsuccessful attempts to cure deficiencies. See Foman, 371 U.S. at 182, 83 S.Ct. at 230.

  Plaintiffs ask the Court, throughout their opposition, to allow for leave to amend if the Court does not agree that a cause of action has been stated under §§ 1983, 1985, and 1986. The Court, under the guidance of Foman, denies plaintiffs' request for leave to amend. As evidenced above, plaintiffs have tried numerous to times to make their "spoliation of evidence, obstruction of justice and conspiracy" claims. Plaintiffs amended their initial complaint three times, filing a total of four complaints in Burrows I. They have attempted to remedy failed attempts at relief under state law claims and now bring, unsuccessfully, federal claims under §§ 1983, 1985, and 1986. The Court finds that plaintiffs, after several attempts, are not able to cure the pleading deficiencies for these claims and therefore denies leave to amend.


  For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants' motions to dismiss without leave to amend. The Adventist defendants' motion for sanctions is DENIED as moot.

  IT IS SO ORDERED. [Docket ## 7, 10, 11, 12, 20, 27]

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