United States District Court, S.D. California
ORDER (1) DENYING PLAINTIFF'S MOTION TO AMEND
CLAIM OF EXCESSIVE FORCE; AND (2) DENYING PLANTIFF'S
MOTION FOR EXTENSION OF PRETRIAL PROCEEDINGS
Roger T. Benitez United States District Judge.
before the Court are two motions brought by Plaintiff Javon
Lamar Torbert: (1) a motion to amend to add a claim of
excessive force; and (2) a motion for an extension of
pretrial proceedings. Both motions are DENIED.
Motion to Amend
moves to amend his complaint to state a new claim for
excessive force. As background, the only remaining claim is
one for excessive force against Defendant Dailly related to
closing a prison door on Plaintiff's hand. In his
complaint, Plaintiff alleged that he “was the victim of
excessive force from Deputy Dailly by having the metal door .
. . slammed on Plaintiff's left forearm”
“after snatching a walking cane out of Plaintiff's
left hand.” (Compl. at 3, 4, ECF No. 1.) There is video
footage of the incident. In the Report and Recommendation on
Defendants' motion for summary judgment, Magistrate Judge
Stormes described the incident as follows:
The video footage shows that Torbert backed into the cell
with his left arm outstretched-either maintaining a grasp on
his cane or trying to reach for his cane-and Dailly shut the
door on Torbert's arm. D-NOL Ex. G, 10/2/16 Video at
19:25:19. The incident took place over three seconds.
Id. According to the video, Torbert had not
completely entered the cell before the door was slammed on
his arm. Id. After the arm was slammed, Deputy
Dailly reopened the door, at which [point] Torbert pulled his
arm into the cell, and then Dailly closed it. Id.
& Recommendation at 4, ECF No. 100.) The Report and
Recommendation concluded that “[t]here is a question of
fact as to whether Deputy Dailly intended to apply the force
of the door on Torbert's arm to get him to release the
cane.” (Id. at 11.) This Court adopted the
Report and Recommendation. (ECF No. 109.)
excessive force claim has been framed in terms of the force
of the door slamming on Plaintiff's arm while he was
holding or reaching for his cane. He now seeks to add a
separate claim for excessive force in connection with
Defendant Dailly “snatching the cane.” (Mot. to
Amend at 1, 3, ECF No. 146.) In his motion, Plaintiff admits,
“[i]n the original complaint, the excessive force claim
was only against . . . Dailly for slamming the metal door on
Plaintiff's left arm while trying to snatch
Plaintiff's cane. . . . In all of Plaintiff's motions
. . . he has maintained the defendant snatching the cane and
slamming the metal door as one act.” (Mot. to Amend at
1.) He now claims, however, that “[t]he two are in fact
separate and will be presented at trial as so.”
(Id.) In Plaintiff's view, slamming the door was
one act of excessive force and taking the cane was another
act of excessive force.
party seeks leave to amend a pleading after the time period
specified in the court's scheduling order, as is the case
here, Federal Rule of Civil Procedure 16(b)'s “good
cause” standard governs the motion for leave to amend.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
607-08 (9th Cir. 1992). The “‘good cause'
standard primarily considers the diligence of the party
seeking the amendment.” Id. at 609.
“While a court may take into account any prejudice to
the party opposing modification of the scheduling order,
‘the focus of the [Rule 16(b)] inquiry is upon the
moving party's reasons for seeking modification. If that
party was not diligent, the inquiry should end.'”
In re W. States Wholesale Natural Gas Antitrust
Litig., 715 F.3d 716, 736 (9th Cir. 2013) (quoting
Johnson, 975 F.3d at 609).
good cause is shown, the moving party must demonstrate that
the amendment is proper under Federal Rule of Civil Procedure
15. Johnson, 975 F.3d at 608. Rule 15 directs courts
to “freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Courts generally
consider five factors when assessing the propriety of a
motion for leave to amend: undue delay, bad faith, futility
of amendment, prejudice to the opposing party, and whether
the party has previously amended the pleadings. Ahlmeyer
v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 n.3
(9th Cir. 2009).
motion is DENIED. Plaintiff cannot show diligence in seeking
the amendment. The deadline for filing a motion to amend the
pleadings was April 30, 2015. (ECF No. 14.) Plaintiff now
moves, on the eve of the pretrial conference, to add a claim
whose facts he has admittedly known since the beginning of
this litigation. He provides no explanation for this delay.
See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.
1995) (“[A] district court does not abuse its
discretion in denying a motion to amend where the movant
presents no new facts but only new theories and provides no
satisfactory explanation for his failure to fully develop his
the amendment would probably be futile and would further
delay the case. If the Court grants the amendment, Defendant
will move to dismiss the claim because the force applied to
remove the cane was de minimis and not a cognizable
injury. “The Eighth Amendment's
prohibition of ‘cruel and unusual' punishments
necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of
force is not of a sort ‘repugnant to the conscience of
mankind.'” Hudson v. McMillian, 503 U.S.
1, 9-10 (1992) (quoting Whitley v. Albers, 475 U.S.
312, 327 (1986)). Here, even assuming Dailly did
“snatch” the cane, it would likely constitute
de minimis force and the claim would be dismissed.
See Anthony v. Schackmann, 402 F. App'x 207, 208
(9th Cir. 2010) (“Summary judgment ...