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Amyra Nicholson, et al v. Bakersfield Police Officer Dossey

November 15, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



On October 12, 2011, Plaintiffs Amyra Nicholson; C.W., a minor by her Guardian ad Litem Amyra Nicholson; R.S.W, a minor by her Guardian ad Litem Amyra Nicholson; and Brittany Williams (collectively, "Plaintiffs") filed a motion for leave to amend the complaint to name Bakersfield Police Officer Lynn Martinez ("Officer Martinez") as Doe 1. (Doc. 61.) The Court reviewed the motion and supporting documents and determined that this matter is suitable for decision without oral argument.

For the reasons set forth below, Plaintiffs' motion to amend the complaint is DENIED.


Plaintiff Amyra Nicholson ("Nicholson"), initially appearing pro se and in forma pauperis, filed her initial complaint on August 11, 2008. (Doc. 1.) The Court dismissed the complaint without prejudice due to pleading deficiencies identified in the initial screening process. (Doc. 3.) Plaintiff Nicholson filed a first amended complaint on September 29, 2008, which was screened by the Court and dismissed with leave to amend on January 14, 2009. (Docs. 4, 5.) A second amended complaint was filed on January 29, 2009, and Plaintiff Nicholson filed a motion seeking limited pre-trial discovery on February 3, 2009. (Docs. 6, 7.)

Plaintiff obtained counsel on June 5, 2009, and moved to file a third amended complaint on October 14, 2009. (Docs. 12, 15.) On October 14, 2009, the Court deemed that motion to be a status conference statement and allowed the third amended complaint to be filed by October 19, 2009. (Docs. 16, 17.) The third amended complaint is the operative pleading.

The third amended complaint added Brittany Williams and minors C.W. and R.S.W. as Plaintiffs. (Doc. 17.) Plaintiffs allege that on June 29, 2007, they were illegally detained and "essentially strip-searched" at their residence by officers of the Bakersfield Police Department. (Doc. 17, ¶ 14.) Plaintiffs assert that the Defendant police officers "reported that they were present to conduct a parole search of another occupant of plaintiffs' residence." (Doc. 17, ¶ 14.) Plaintiffs contend that "Plaintiffs Amyra Nicholson, minor C.W., and Brittany Williams were strip searched by a female officer whose name remains unknown to plaintiffs but who is believed to be among the presently-named defendant officers." (Doc. 17, ¶ 14.) Plaintiff minor R.S.W. was strip searched by a male officer. (Doc. 17, ¶ 14.) Plaintiffs further contend that "Defendant officer Dossey further used illegal and unjustified force to knock plaintiff Amyra Nicholson to the ground, illegally searched her purse, and was present and personally participated in the decision(s) to strip search plaintiffs." (Doc. 17, ¶ 14.) Plaintiffs' third amended complaint alleges causes of action for violating federal civil rights, assault, battery, false imprisonment, and infliction of emotional distress. (Doc. 17.)

On April 27, 2010, the Court issued a scheduling order, and an amended scheduling order was issued on January 20, 2011. (Docs. 40, 42.) Pursuant to the amended scheduling order, the discovery deadlines were May 25, 2011, for non-expert discovery; June 1, 2011, for expert disclosure; June 20, 2011, for supplemental expert disclosures; and July 11, 2011, for expert discovery. (Doc. 42.) The scheduling order also set a non-dispositive motion filing deadline of July 22, 2011, a dispositive motion filing deadline of August 29, 2011, a pre-trial conference date of November 18, 2011, and a trial date of January 10, 2012. (Docs. 40, 42.)

On August 29, 2011, Defendants filed a motion for summary judgment. (Doc. 51.) Plaintiffs filed an opposition on September 27, 2011. (Doc. 57.) Among Plaintiffs' arguments in the opposition was a request to amend their complaint to name Officer Martinez as Doe Defendant No. 1, contending that they only learned of Officer Martinez' identify after "conducting considerable discovery." (Doc. 57, 2:6-8, 9:5-13.)

On October 3, 2011, Defendants filed their reply to the motion for summary judgment and argued that Plaintiffs' request to amend their complaint was improper and untimely. (Doc. 58, 7:12-9:21.) Defendants noted procedural and substantive defects in Plaintiffs' request, including that Plaintiffs had not filed a noticed motion, had not complied with Local Rule 137(c) by failing to include the proposed fourth amended complaint, and that Defendants would be prejudiced by allowing amendment. (Doc. 58, 7:12-9:21.) Defendants argued that Plaintiffs were not diligent and their request was untimely as Plaintiffs had known of Officer Martinez' existence on or before May 12, 2011, when they noticed her deposition, but had waited to seek amendment until September 27, 2011, when they filed their opposition to the motion for summary judgment. (Doc. 58, 9:5-10.) Defendants noted that Plaintiffs knew of Officer Martinez prior to the discovery cut-off deadlines but sought amendment months after the deadlines had passed.

On October 7, 2011, the Court issued an order taking Defendants' motion for summary judgment under submission and allowing Plaintiffs to file a motion for leave to amend. (Doc. 59.) The Court noted that Plaintiffs' request for amendment in their opposition to summary judgment had "a number of procedural problems" and that any properly noticed motion to amend filed pursuant to the order "should comply with the Local Rules, and should explain why there was not an attempt to include Martinez sooner than September 27, 2011." (Doc. 59, 1:25-2:2.)

On October 12, 2011, Plaintiffs filed the instant motion to amend the complaint. (Doc. 61.)


A. Legal Standards

1. Standard for Amending the Pleadings Under Federal Rule of ...

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