ORDER GRANTING LEAVE TO AMEND
Plaintiff is a prisoner with counsel suing for civil rights violations. See 42 U.S.C. § 1983. This action currently proceeds on the amended complaint filed on June 10, 2010, which plaintiff filed on his own behalf and in pro se prior to obtaining representation. Dckt. No. 37. Newly represented by counsel, plaintiff now seeks to file a second amended complaint which would add additional parties, allege certain claims on behalf of a state-wide class, and dismiss other parties and claims. For the reasons provided below, the court will grant plaintiff's motion.
Plaintiff initiated this case pro se on May 30, 2008 to challenge, among other things, a series of allegedly race-based lockdowns to which he was subjected at High Desert State Prison ("HDSP") beginning on September 12, 2006. Dckt. No. 1 at 12-14.*fn1 Plaintiff alleged that, in response to his administrative appeal of the lockdowns, prison staff informed plaintiff that it was the policy of the California Department of Corrections and Rehabilitation ("CDCR") that "when there is an incident involving any race, all inmates of that race are locked up. Ethnic groups are appropriate in segmenting the inmate population during the process of establishing a regular program following an incident." Id. at 15. Plaintiff alleged that he was subjected to cruel and unusual punishment as a result of the lockdowns and that the lockdowns violated his rights to equal protection and due process. Id. at 17, 30-31, 38-44. Plaintiff further alleged that prison officials took adverse actions against him in response to his filing of grievances and lawsuits, constituting unlawful retaliation, obstruction of justice, and denial of access to the courts and violating his due process and equal protection rights. Id. at 17-27, 32-37, 45-48. Lastly, plaintiff asserted state-law claims of negligence and intentional infliction of emotional distress. Id. at 48-51.
The case was reassigned to visiting judge Richard A. Jones of the Western District of Washington in January 2009. Dckt. No. 7. Under Judge Jones, the case proceeded to service, and defendants filed an answer on October 22, 2009. Dckt. Nos. 8, 16. The pretrial discovery and scheduling order issued on November 10, 2009, setting the discovery deadline at March 31, 2010 and the pretrial motion deadline at June 30, 2010. Dckt. No. 18. Discovery disputes and plaintiff's first request for leave to file an amended complaint followed. Dckt. Nos. 22-31, 36-37, 39-41.
On August 9, 2010, Judge Jones granted plaintiff leave to file an amended complaint, which defendants had not opposed, making the amended complaint filed on June 9, 2010 (Docket No. 37) the operative pleading. Dckt. No. 42. The amended complaint substituted two named defendants for Doe defendants and made other clarifications but did not substantively change the case. Defendants filed an answer to the amended complaint on January 27, 2011. Dckt. No. 63.
On September 29, 2010, Judge Jones granted plaintiff's motion to compel, concluding that defendants had failed to respond to plaintiff's discovery in good faith and that their "responses served only to obstruct discovery." Dckt. No. 44 at 3. The court further found that defendants' failure to produce discovery prevented the case from being trial-ready, despite the passage of the pretrial motion deadline. Id. at 6. Plaintiff subsequently filed additional discovery motions. Dckt. Nos. 47, 50. However, while these motions were pending, the court appointed counsel to plaintiff for the limited purpose of assisting plaintiff in settlement negotiations with defendants. Dckt. No. 60. That same counsel later agreed to provide continuing representation to plaintiff and filed the instant motion for leave to amend. Dckt. Nos. 70, 74. In light of plaintiff's new representation, the court took the pending discovery motions off calendar without prejudice. Dckt. No. 82 at 3-4. In the same order, Judge Jones directed the transfer of the case back to a judge within the Eastern District of California, concluding that it was "far from ideal for a judge sitting in the Western District of Washington to consider presiding over an action challenging policies at all of California's prisons." Id. at 1. The case accordingly found itself back before Judge John A. Mendez and the undersigned for determination of the motion for leave to amend.
The proposed second amended complaint would change the case in the following ways: (1) Adding three plaintiffs to the claims for injunctive and declaratory relief regarding CDCR's lockdown policies who would seek to act, along with plaintiff, as representatives of a class of "all prisoners who are now or will in the future be housed in a men's prison under the jurisdiction of CDCR and who are now or will in the future be subject to CDCR's policy and practice of implementing race-based lockdowns" and a similar class of prisoners who are or will be "subject to CDCR's policy and practice of implementing excessively lengthy lockdowns." Dckt. No. 70, Ex. A at 7.
(2) Adding defendants CDCR Secretary Matthew Cate, CDCR Undersecretary of Operations Scott Kernan, CDCR Chief Deputy Secretary for Adult Operations Terri McDonald, and CDCR Director of the Division of Adult Institutions George Giurbino, in their official capacities, to the injunctive and declaratory relief claims. Id. at 5-6.
(3) Deleting the claims for retaliation, denial of access to courts, and obstruction of justice.
(4) Deleting defendants T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, and J. Walker.
Under Federal Rule of Civil Procedure 15(a)(2), once a responsive pleading has been filed, a party may amend its pleading with the court's leave, which should be freely given "when justice so requires." "Rule 15's policy favoring amendments is liberally applied" by courts in the Ninth Circuit. Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607 (9th Cir. 1992). Under Rule 15(a), once the defendant has filed a responsive pleading (as is the case here), "leave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay." Id.
However, once the district court has filed a pretrial scheduling order establishing a timetable for amending pleadings, but before the final pretrial conference, a party seeking to amend its pleadings must show good cause for modifying the scheduling order as required by Rule 16. Id. at 608. Rule 16's "good cause" standard differs from Rule 15's liberal standard by focusing primarily in the diligence of the party seeking amendment rather than that party's bad faith and the prejudice to the other party. Id. "Good cause" under Rule 16 means that the party seeking to amend could not have done so within the deadline provided by the scheduling order despite its diligence. Id.
The parties dispute whether Rule 15 or Rule 16 governs the instant motion to amend. As noted above, the scheduling order in this case issued on November 10, 2009. Dckt. No. 18. That order did not expressly provide a separate deadline for motions to amend, but generally provided that pretrial motions should be filed on or before June 30, 2010. Id. Plaintiff argues that the scheduling order did not establish a deadline for motions to amend, which are not necessarily "pretrial" motions, because they may be filed after trial has begun. Thus, under plaintiff's reasoning, Rule 16 does not apply because the scheduling order did not cover motions to amend. The court finds this argument unpersuasive. Under Rule 16(b)(3)(A), the pretrial scheduling order is required to provide a deadline for amending the pleadings. Reading the court's scheduling order consistently with this requirement, and in light of ...