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Steven D. Brooks v. T. Felker


October 12, 2011


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.

B. Procedural History

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 raised Eighth Amendment and Equal Protection claims. Plaintiff named no Doe defendants.

On March 30, 2011, plaintiff filed a motion for leave to file a second amended complaint. Plaintiff named the same four defendants, but sought leave to add two due process claims. Plaintiff included no Doe defendants. Plaintiff's motion to amend was denied because plaintiff failed to show good cause to justify amendment or to demonstrate diligence in bringing the motion; defendants would be prejudiced given the over six year lapse in time, and the fact that discovery would have to be re-opened, and the scheduling order vacated; and, finally, amendment would be futile as the proposed amended claims failed to state a cognizable civil rights claim. (Dkt. No. 73.)

On June 20, 2011, plaintiff filed a second motion for leave to amend (dkt. no. 77), accompanied by his proposed fifty page second amended complaint. Plaintiff seeks to add eight new defendants, and a state law claim. Plaintiff's motion is based on "new information that was not made available to the plaintiff during the discovery process." (Id. at 2.) Rather, plaintiff met with an attorney and another inmate*fn4 in April of 2011, during which plaintiff allegedly learned

(a) the identity of facility captains at HDSP that plaintiff was unable to obtain during discovery, and (b) about various lockdown procedures, regulations and other race-based lockdowns in the California prison system. It appears plaintiff attempts to incorporate some of the allegations raised in another lawsuit in the instant action. See n.2. infra.

C. Application

First, plaintiff seeks leave to amend to add a state law claim alleging the intentional infliction of emotional distress. However, California's Tort Claims Act requires that a tort claim against a public entity or its employees be presented to the California Victim Compensation and Government Claims Board, formerly known as the State Board of Control, no more than six months after the cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 911.2, 945.4, 950-950.2; Hernandez v. McClanahan, 996 F.Supp. 975, 977 (N. D. Cal. 1998) (failure to present timely California tort claims bars plaintiff from bringing them in federal suit). Presentation of a written claim, and action on or rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings County (Bodde), 32 Cal.4th 1234, 1245, 13 Cal. Rptr.3d 534, 543 (2004); Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim against a public employee, a plaintiff must allege compliance with the Tort Claims Act. State v. Superior Court, 32 Cal.4th at 1245, 13 Cal. Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). Here, plaintiff attempts to add a state law claim alleging the intentional infliction of emotional damages by defendants. However, plaintiff has failed to allege compliance with the Tort Claims Act, either in the second amended complaint or in his motion to amend. Plaintiff also did not file a reply. Because plaintiff has failed to allege compliance with the Tort Claims Act, plaintiff's motion to amend to add this claim is denied.

Second, plaintiff seeks leave to amend to add defendants Edward Alameida, the Director of CDCR, James Tilton, the Secretary of CDCR, and Mike Knowles, Deputy Director, apparently in an attempt to challenge the regulations promulgated by the CDCR in connection with the instant lockdowns. However, plaintiff failed to demonstrate diligence or good cause to add these defendants or proposed new claims concerning CDCR regulations. Defendants also ask the court to take judicial notice of plaintiff's lawsuit against defendant Alameida in Brooks v. Alameida, et al., 2:04-cv-2059 H (S.D. Cal.) (Dkt. No. 80 at 4-12.) Defendants' request is granted. This lawsuit demonstrates plaintiff was aware of Alameida's identity by October of 2008, when plaintiff filed the instant action. Moreover, plaintiff was put on notice of the applicable CDCR regulations on May 16, 2006, when plaintiff was provided the Director's Level Decision in appeal No. HDSP-05-3292. (Dkt. No. 1 at 12.)

To the extent plaintiff attempts to name defendants Alameida, Tilton and Knowles in their supervisory capacity, defendants are correct that supervisory personnel are generally not liable in civil rights actions. The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Defendants have provided the declaration of D. Runnels, former Warden of HDSP, who confirmed that Alameida, Tilton and Knowles played no role in the decision to implement, modify or terminate the lockdowns at HDSP. (Dkt. No. 79-3 at 3.) Finally, to the extent plaintiff claims he became aware of the roles of Alameida or Knowles by virtue of his April 2011 meeting with inmate Mitchell, the court notes that inmate Mitchell's amended complaint does not name Alameida or Knowles as defendants. See 2:08-cv-1196 JAM EFB P (Dkt. No. 84).

For all of the above reasons, plaintiff's motion to amend to name Alameida, Tilton and Knowles as defendants, or to include challenges to CDCR regulations, is denied. Of course, this does not preclude plaintiff from using CDCR regulations to support his pending claims.

Third, plaintiff attempts to amend the complaint to add Wright, Blankenship, Foulk, Norgaard and Vanderville, alleged facility captains at HDSP, as defendants. Plaintiff argues that the facility captains "implemented and administered" the lockdowns, and "had the power to extend the race-based lockdown by exaggerating their responses and investigative findings and they punished plaintiff for being black rather than responding appropriately to a genuine emergency." (Dkt. No. 77 at 4.) Plaintiff "requested the names of all those individuals who were assigned Facility Captains at HDSP. The defendants refused to assist me in determining the names of those individuals." (Dkt. No. 77 at 5.)

Defendants argue that "the Warden was the only person at HDSP with the authority to adjust or terminate a modified program." (Dkt. No. 79 at 9.) Defendants provided the declaration of C. Polan, Personnel Manager at HDSP, who confirmed that Blankenship stopped working at HDSP in 2002. (Dkt. No. 79-2 at 1.) Wright and Foulk were not assigned as captains at HDSP until 2006. (Dkt. No. 79-2 at 2.) Norgaard and Vanderville were never assigned as Facility Captains at HDSP. (Dkt. No. 79-2 at 2.) Thus, none of these proposed defendants were facility captains at HDSP during the 2004 and 2005 lockdowns at issue here.

However, defendants concede that plaintiff attempted to discover the identity of Facility C and D Captains, but argue that plaintiff failed to timely file a motion to compel a further response. Neither party provided a copy of defendants' response to the discovery request, but plaintiff is clearly entitled to discover this information. Moreover, plaintiff is correct that he has encountered difficulties in obtaining discovery; indeed, defendants are still providing plaintiff with discovery despite the passing of the discovery deadline. (Dkt. Nos. 86; 87.) Although plaintiff did not include any Doe defendants in his amended complaint (dkt. no. 25), plaintiff did include Doe defendants in the original complaint. (Dkt. No. 1.) Had defendants timely provided the identity of the pertinent facility captains during discovery, plaintiff may have included them in the previous amended complaint.

In light of the above, plaintiff's motion to amend to add alleged facility captains Wright, Blankenship, Foulk, Norgaard and Vanderville is denied. However, defendants are directed to provide plaintiff with the names of the Facility C and Facility D captains at HDSP during the 2004 and 2005 lockdowns at issue here, who provided the Warden or Associate Warden with information as to whether the lockdowns should be implemented, terminated, or modified. Once this information is provided, plaintiff may renew his motion to amend to name the appropriate facility captains. Plaintiff is cautioned, however, that he is not granted leave to add new claims or other defendants. Indeed, plaintiff could simply add a few paragraphs to the amended complaint (dkt. no. 25) addressing the specific roles of the newly-added facility captains. Plaintiff may only include those facility captains who played a role in the HDSP lockdowns at issue here.

II. Conclusion

In light of the above, plaintiff's motion to amend is denied without prejudice. Once plaintiff's renewed motion to amend is resolved, the court will revisit the issue of scheduling.

In accordance with the above, IT IS HEREBY ORDERED that: 1. Plaintiff's October 5, 2011 request to withdraw his motion to amend, which this court determined was incomplete, (dkt. no. 87), is denied; 2. The July 8, 2011 request for judicial notice (dkt. no. 80) filed by defendants is granted; 3. Plaintiff's June 20, 2011 motion to amend (dkt. no. 77) is denied without prejudice; 4. Within twenty-one days from the date of this order, defendants shall provide plaintiff with the names of those Facility C and Facility D Captains at HDSP in 2004 and 2005 as set forth above; and 5. Twenty-one days after defendants provide plaintiff with facility captain names, plaintiff may renew his motion to amend, accompanied by a proposed amended complaint, entitled "Third Amended Complaint." If plaintiff decides not to seek further amendment, this action will proceed on plaintiff's amended complaint. (Dkt. No. 25.)

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