ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT; SETTING DEPOSITION DATE Re: Dkt. No. 120
WILLIAM H. ORRICK, District Judge.
Pro se plaintiff Ronald Olajide has filed a motion for leave to file a first amended complaint. Dkt. No. 120. For the reasons states below, the motion is GRANTED IN PART and DENIED IN PART. The Court also addresses issues regarding the deposition of Mr. Olajide.
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
According to Mr. Olajide, his proposed amended complaint provides additional factual allegations, changes the statutes on which his claims are based, and adds five individual defendants: Oakland Mayor Jean Quan, Alameda Supervisor Keith Carson, Oakland City Councilmember Larry Reid, and Alameda law enforcement officers Anthony Banks Jr. and Valmore Courtney.
The Court GRANTS Mr. Olajide leave to file an amended complaint adding officers Banks and Courtney as defendants. Mr. Olajide alleges that Officers Banks and Courtney were directly involved in the conduct at issue and the allegations as to them relate to the same facts alleged in the initial complaint. The high-level issues regarding Officers Banks and Courtney are therefore already known to defense counsel and the officers are not prejudiced by being added to this action at this stage, especially in light of the new trial schedule set by the Court during the case management conference on December 3, 2013.
The Court DENIES Mr. Olajide leave to file an amended complaint adding Mayor Quan, Supervisor Carson, and Councilmember Reid as defendants. Mr. Olajide does not allege that these public officials were directly involved in the conduct at issue. Rather, Mr. Olajide alleges that these officials ratified the law enforcement officers' conduct by failing to investigate and arrest the officers. These allegations do not relate to the facts already alleged in the Complaint and it would be prejudicial to add these defendants at this stage. Moreover, the Court finds that granting leave to amend to add Mayor Quan, Supervisor Carson, and Councilmember Reid as defendants would be futile. To hold a policymaker liable for ratifying underlying conduct, "there must be evidence of a conscious, affirmative choice' by the policymaker to approve a subordinate's decision, and the basis for it." Gillette v. Delmore , 979 F.2d 1342, 134-48 (9th Cir. 1992). Mr. Olajide has pleaded no evidence of a "conscious, affirmative choice" by Mayor Quan, Supervisor Carson, or Councilmember Reid and his claims against them fail.
Mr. Olajide's original complaint moved for relief under Title 42 of the United States Code, including sections 1981 and 1983. His proposed amended complaint instead moves for relief under 14 Stat.27 and 17 Stat.13 of the Civil Rights Acts of 1866 and 1871. At oral argument, Mr. Olajide stated that he wishes to move under the Civil Rights Acts rather than under Title 42 because Title 42 is not passed by Congress and he only wishes to resort to original laws passed by Congress. The distinction drawn by Mr. Olajide is not compelling to the Court. The Civil Rights Acts of 1866 and 1871 have been codified at 42 U.S.C. Sections 1981, 1982 and 1983. See, e.g., Wyatt v. Cole , 112 S.Ct. 1827, 1831 (1992) (noting that the Civil Rights Act of 1871 "is codified at 42 U.S.C. § 1983"); Scott v. Eversole Mortuary , 522 F.2d 1110, 1113 (9th Cir. 1975) (noting that the Civil Rights Act of 1866 was "recodified in its present form in 42 U.S.C. ss 1981, 1982"). Accordingly, 42 U.S.C. Section 1983 is the proper vehicle for Mr. Olajide's claims. Whether Mr. Olajide cites the Civil Rights Acts or Title 42, the Court will interpret his Complaint as alleging claims under 42 U.S.C. Section 1983.
DEPOSITION OF MR. OLAJIDE
The parties indicated that they have been unable to settle on a date to depose Mr. Olajide. As ordered at the case management conference, Mr. Olajide shall be deposed on January 23, 2014. The defendants shall arrange for a certified court reporter and, with prior notice, a videographer to report and record the deposition. The defendants shall disclose the reporter and his/her reporting certification to Mr. Olajide at least 48 hours in advance of the deposition. The Court will be available by telephone, through the Courtroom Deputy, if an emergency arises during the deposition that requires the Court's attention. The parties and counsel are expected to treat each other with respect and not obstruct the deposition.
Mr. Olajide's motion for leave to file an amended complaint is GRANTED IN PART and DENIED IN PART. Within 10 days of this Order, Mr. Olajide shall file his amended complaint with the Court. The amended complaint shall strike (not include) allegations regarding Mayor Quan, Supervisor Carson, or Councilmember Reid and shall strike the following paragraphs as they relate only to the futile ratification theory of liability discussed above: F, G, H, 29, 30, 31, 42, 57, 58, 59. Mr. Olajide shall serve the new defendants promptly with the amended complaint if their counsel is unable to accept service for them. Defendants' responsive pleading or motion shall be filed no later than January 13, 2014 and shall be set for hearing no later than February 19, 2014.
Mr. Olajide shall be deposed on January 23, 2014, according to the ...