United States District Court, E.D. California
KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff is a state prisoner, proceeding in forma pauperis and without counsel, in this civil rights action filed pursuant to 41 U.S.C. § 1983. Plaintiff is currently incarcerated at California State Prison-Solano (CSP-SOL). This action proceeds on plaintiff's original complaint (ECF No. 1), against one defendant, Vallejo Police Officer Jerome Bautista, on a claim of excessive force, which allegedly occurred incident to plaintiff's arrest on November 10, 2012. Defendant answered the complaint on October 29, 2013. (ECF No. 31.) A Discovery and Scheduling Order issued on November 1, 2013, setting a discovery deadline of February 21, 2014, and a May 16, 2014 deadline for filing dispositive motions; both deadlines have expired. (ECF No. 33.)
Pending are plaintiff's requests to: (1) amend his complaint to add the City of Vallejo as a defendant; (2) reopen discovery and extend the deadlines for discovery and dispositive motions; (3) compel discovery; (4) compel telephone access; and (5) appoint counsel. Defendant, appearing through the Vallejo City Attorney's Office, has timely responded to each matter requiring a response. For the following reasons, the court denies each of plaintiff's motions; in addition, the court extends the deadline for filing dispositive motions.
II. Motion for Leave to File Proposed Third Amended Complaint
Plaintiff moves for leave to file his proposed Third Amended Complaint (TAC). (See ECF No. 49.) Defendant filed an opposition (ECF Nos. 52), and plaintiff filed a reply (ECF No. 55).
A. Legal Standards
Once an answer to a complaint has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Fed.R.Civ.P. 15(a). Leave to amend "shall be freely given when justice so requires." Id . In considering a plaintiff's motion for leave to file an amended complaint, the district court may consider the impact of previous amendments, and whether the proposed amendment reflects bad faith, undue delay, prejudice to the opposing party, or futility. Allen v. City of Beverly Hills , 911 F.2d 367, 373 (9th Cir. 1990).
In the instant case, these factors must be considered in the context of a civil rights action filed by a prisoner proceeding in pro se. The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious, " that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). A claim may be dismissed for failure to state a claim if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim. Hishon v. King & Spalding , 467 U.S. 69, 73 (1984) (citing Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt Lake Log Owners Ass'n , 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees , 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff, and resolve all doubts in plaintiff's favor, Jenkins v. McKeithen , 395 U.S. 411, 421 (1969).
While the pleading standard set forth in Federal Rule of Civil Procedure 8 "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing, inter alia, Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555. However, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679 (citation omitted). In addition, the allegations of a pro se complaint must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam).
Also pertinent are the legal standards for establishing municipal liability. A municipality may be liable under Section 1983 when it is a driving force behind the alleged constitutional violation, through a "policy or custom, whether made by its lawmakers or those whose edicts or acts may fairly be said to represent official policy." Monell v. Department of Social Services , 436 U.S. 658, 694 (1978). Pursuant to Monell, municipal liability may be premised on: (1) an official policy; (2) a "longstanding practice or custom which constitutes the standard operating procedure of the local government entity;" (3) the act of an "official whose acts fairly represent official policy such that the challenged action constituted official policy;" or (4) where "an official with final policy-making authority delegated that authority to, or ratified the decision of, a subordinate." Price v. Sery , 513 F.3d 962, 966 (9th Cir. 2008) (citations and internal quotation marks omitted.) See also Gibson v. County of Washoe, Nevada , 290 F.3d 1175, 1185 (9th Cir. 2002) (describing two routes to municipal liability, where municipality's official policy, regulation or decision violated plaintiff's rights, or where municipality failed to act under circumstances showing deliberate indifference to plaintiff's rights), cert. denied, 537 U.S. 1106 (2003).
B. Prior Rulings
This court has twice rejected plaintiff's request to add the City of Vallejo as a defendant in this action. The court initially reasoned, in part (ECF No. 25 at 2 n.1, and related text):
Review of plaintiff's complaint demonstrates that plaintiff has failed to allege facts sufficient to state a cognizable claim against either entity [City of Vallejo or Vallejo Police Department], i.e. plaintiff does not allege that defendant Bautista's challenged conduct reflected municipal policy or practice. "[A] municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Department of Social Services , 436 U.S. 658, 691 (1978). "[A] municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." Collins v. City of Harker Heights , 503 U.S. 115, 123 (1992) (original emphasis), citing Monell , 436 U.S. at 694-95.
The court revisited this matter when plaintiff requested the appointment of counsel for the purpose of obtaining assistance to add "defendant's employer" to this action. The court denied both requests, noting in pertinent part (ECF No. 38 at 3):
[P]laintiff was previously informed that he had alleged no basis for including a municipal defendant, i.e., that "plaintiff does not allege that defendant Bautista's challenged conduct reflected municipal policy or practice." (ECF No. 25 at 2 (citing Monell v. Department of Social Services , 436 U.S. 658, 691 (1978), and Collins v. City of Harker Heights , 503 U.S. 115, 123 (1992).) Plaintiff has proferred no subsequent information to alter this assessment; if plaintiff obtains such information pursuant to discovery, he may then move to amend his complaint to add defendant's employer.
C. Proposed TAC
In his proposed TAC, plaintiff seeks to add the following allegations ...