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 that plaintiff was denied outdoor exercise for over one year in violation of the Eighth Amendment, and based on plaintiff's race in violation of the Equal Protection Clause. (Dkt. No. 25.) The instant action is proceeding against four defendants employed at High Desert State Prison ("HDSP"). (Id.) As set forth more fully below, plaintiff's renewed motion to amend is denied without prejudice.*fn1
I. Second Motion to Amend
On June 20, 2011, plaintiff filed a second motion to amend*fn2
pursuant to Rules
15(a), 16(b) and 19(a) of the Federal Rules of Civil Procedure,
accompanied by a proposed second amended complaint. In the proposed
second amended complaint, plaintiff seeks to add eight new defendants.
Plaintiff seeks to add Edward Alameida, Director of Corrections, James
Tilton, Secretary of Corrections, and Mike Knowles, Deputy Director.
Plaintiff contends these defendants were "responsible for designing,
implementing and approving the lockdowns/ modified programs at HDSP,"
and "it was their obligation to constantly review, evaluate and
authorize 'modified programs' and race-based lockdowns at HDSP." (Dkt.
No. 77 at 4.) Also, plaintiff seeks to name five facility captains as
defendants. Plaintiff argues it is essential to add the facility
captains because "they played a crucial role in the day to day
planning of the race-based lockdowns at HDSP just as other facility
captains do at other CDCR*fn3 institutions." (Dkt. No
77 at 6.)
Defendants oppose the motion, arguing that plaintiff has failed to show good cause for the delay in adding the proposed new defendants, and restarting the case would cause undue delay and prejudice to defendants. In addition, defendants argue that the proposed second amended complaint 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
The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). "It is the law of this circuit that a plaintiff waives all claims alleged in a dismissed complaint which are not realleged in an amended complaint." Forsyth v. Humana, Inc., 114 F.3d 1467 (9th Cir. 1997). Thus, an amended or supplemental complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once an amended pleading is filed, the original pleading no longer serves any function in the case. Id.; see also E.D. Local Rule 220.
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 original complaint, plaintiff named T. Felker, Warden, and Does 1 - 12, as defendants in this action. Plaintiff alleged defendants were deliberately indifferent to plaintiff's serious medical needs by depriving plaintiff of fresh air and outdoor exercise, and that the deprivation of outdoor exercise and fresh air was cruel and unusual punishment. Plaintiff claims he was locked down from March 9, 2004 to February 5, 2005 in Facility C of HDSP, and from April 2005 to December 2005 in Facility D of HDSP.
On May 4, 2010, plaintiff was granted leave to amend, and plaintiff's February 3, 2010, sixteen page, first amended complaint (dkt. no. 25) was ordered served on three additional defendants. Plaintiff again named T. Felker, and also named R.K. Wong and R.S. Johnson, all Associate Wardens, as well as D.L. Runnels, Warden. Plaintiff ...