The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
This civil rights action is proceeding on plaintiff's February 3, 2010 amended complaint alleging plaintiff was denied outdoor exercise for over one year in violation of the Eighth Amendment, and based on plaintiff's race. (Dkt. No. 25.) The instant action is proceeding against four defendants employed at High Desert State Prison. (Id.) As set forth more fully below, the court finds that plaintiff's motion to amend is denied.
On March 31, 2011, plaintiff filed a motion to file a second amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,*fn1 accompanied by a proposed second amended complaint. In the proposed second amended complaint, plaintiff seeks to add two due process claims. Plaintiff contends his due process rights were violated when he was housed in a 180 design facility rather than a 270 design facility*fn2 for over 600 days, and alleges defendants wrongfully refused to transfer plaintiff to a 270 design facility. Defendants oppose the motion, arguing it is untimely, and that the over five year delay will prejudice defendants. In addition, defendants argue that the proposed amended is futile because plaintiff has allegedly failed to state a cognizable due process claim. No reply was filed by plaintiff.
A. Standards for a Motion to Amend
Federal Rule of Civil Procedure 15(a) is to be applied liberally in favor of amendments and, in general, leave shall be freely given when justice so requires. See Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994). However, because a pretrial scheduling order has been filed in this action, resolution of this motion to amend is governed by Rule 16 of the Federal Rules of Civil Procedure. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). "Once the district court filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 . . . that rule's standards controlled." Id. Rule 16(b) provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). The scheduling order in this case was filed on May 11, 2010. (Dkt. No. 61.) Therefore, the court considers the present motion under the Rule 16 standard for amendment and secondarily under the standard of Rule 15(a). See Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. Cal. 1999).
While amendment of pleadings is ordinarily liberally granted under Federal Rule of Civil Procedure 15(a), a movant must demonstrate "good cause" to justify amendment under Federal Rule of Civil Procedure 16(b). Johnson, 975 F.2d at 606-07. The "good cause" standard "focuses on the diligence of the party seeking amendment." Id. at 607 (citing Johnson, 975 F.2d at 609). The district court may modify the pretrial schedule if it cannot reasonably be met despite the diligence of the party seeking the extension." Johnson, 975 F.2d at 609 (internal quotation marks omitted). "If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted." Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (internal quotation marks omitted). In addition to a lack of diligence, "prejudice to the party opposing the modification" may supply additional reasons to deny modification. Johnson, 975 F.2d at 609.
In order to demonstrate diligence, plaintiff must show whether he collaborated with the court in setting a schedule; whether matters that were not, and could not have been, foreseeable at the time of the scheduling conference caused the need for amendment; and whether the movant was diligent in seeking amendment once the need to amend became apparent. Id. at 608 (citations omitted). "[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Johnson, 975 F.2d at 609. However, the district court is given broad discretion under Rule 16. Id. at 607.
Therefore, in interpreting the "good cause" requirement under Federal Rule of Civil Procedure 16(b), the court considers, primarily, "the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609. As a secondary consideration, the court considers the degree of prejudice to the opposing party. Id.
In the instant motion, plaintiff has failed to address good cause or diligence. Rather, plaintiff's simply argues the merits of adding the proposed due process claim. Review of the proposed second amended complaint ("SAC") reflects the following.
Plaintiff was transferred from the California State Prison in Lancaster, California ("CSP-LAC"), to High Desert State Prison ("HDSP") on March 9, 2004. (SAC at 4.) Prior to transfer, plaintiff, a Level IV inmate, was provided a classification hearing. (SAC at 11.) Plaintiff was informed that CSP-LAC was converting to a Level III facility, requiring plaintiff's transfer to a Level IV facility. (Id.) The committee found plaintiff met the criteria for Level IV 270 design housing. (Id.) Upon arrival at HDSP, however, plaintiff was housed in HDSP's Level IV 180 design housing. (SAC at 4.) Plaintiff received his annual classification review in November of 2004. (SAC at 4.)
On July 25, 2005, Associate Warden Wong, in connection with plaintiff's appeal No. HDSP-D-05-02027, noted plaintiff was interviewed by CC-II Babich, who informed plaintiff that in-level transfers would not be approved, with the exception of medical/mental health necessity of the inmate or safety and security reasons, based on fiscal constraints. (SAC at 49.) On October 25, 2005, plaintiff had another annual review at which plaintiff was recommended for a medical transfer due to plaintiff's high blood pressure to Calipatria. (SAC at 15.) On November 15, 2005, plaintiff's transfer was denied due to enemy concerns. (Id.) On December 6, 2005, plaintiff filed an appeal No. HDSP-B-05-3607 seeking transfer based on his medical problems and his inability to exercise due to the frequent lockdowns. (Id.)
On January 19, 2006 plaintiff's third level appeal in No. HDSP 05-1468 was denied. (SAC at 51.) The reviewer noted that plaintiff was informed that "even though [plaintiff] is classified as eligible for 270-design housing, [plaintiff] is still a Level IV inmate and 270-design eligible inmates can be housed on a 180-design facility; however, a 180-design inmate cannot be housed on a ...