United States District Court, E.D. California
PATRICK M. McMILLIAN, Plaintiff,
O. DELGADO, et.al., Defendants.
FINDINGS AND RECOMMENDATION RECOMMENDING
PLAINTIFF'S MOTION TO AMEND THE COMPLAINT BE DENIED,
WITHOUT PREJUDICE, AS FUTILE [ECF NO. 23]
Patrick M. McMillain is appearing pro se in this civil rights
action pursuant to 42 U.S.C. § 1983. This matter was
referred to a United States Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 302.
before the Court is Plaintiff's motion to amend the
complaint, along with a proposed amended complaint, filed
November 15, 2019. Defendants did not file an opposition, and
the time to do so has expired.
action is proceeding against Defendants O. Delgado, N.
Romero, D. Brown, C. Riley, B. Jones, M. Negrete, and J.
Dunnahoe for excessive force in violation of the Eighth
filed an answer to the complaint on July 1, 2019. After an
unsuccessful settlement conference, the Court issued the
discovery and scheduling order on September 11, 2019.
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend the party's pleading once as a matter of course
twenty-one days after serving, or if a response was filed,
within twenty-one days after service of the response.
Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend only by
leave of the court or by written consent of the adverse
party, and leave shall be freely given when justice so
requires. Fed.R.Civ.P. 15(a)(2).
15(a) is very liberal and leave to amend ‘shall be
freely given when justice so requires.'”
AmerisourceBergen Corp. v. Dialysis West, Inc., 465
F.3d 946, 951 (9th Cir. 2006) (quoting Fed.R.Civ.P. 15(a)).
However, courts “need not grant leave to amend where
the amendment: (1) prejudices the opposing party; (2) is
sought in bad faith; (3) produces an undue delay in the
litigation; or (4) is futile.” AmerisourceBergen
Corp., 465 F.3d at 951. Relevant to the futility factor,
a plaintiff may not bring unrelated claims against unrelated
parties in a single action. Fed.R.Civ.P. 18(a), 20(a)(2);
Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011);
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The burden to demonstrate prejudice falls upon the party
opposing the amendment. DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent
prejudice, or a strong showing of any of the remaining three
factors, a presumption exists under Rule 15(a) in favor of
granting leave to amend. Eminence Capital, LLC v. Aspeon,
Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further,
undue delay alone is insufficient to justify denial of a
motion to amend. Bowles v. Reade, 198 F.3d 752, 758
(9th Cir. 1999). However, “[f]utility of amendment can,
by itself, justify the denial of a motion for leave to amend.
Bonin v. Calderon, 59 F.3d 814, 845 (9th Cir. 1995);
Miller v. Rykoff-Sexton, 845 F.2d 209, 214 (9th Cir.
states seeks to amend the complaint because “[s]ince
the filing of this complaint, the Plaintiff determined that
excessive force is not his cause of action. The complaint
needs to be re-written. Plaintiff realizes that the
appropriate cause of action is Negligence.” (Mot. at 1,
ECF No. 23.) Plaintiff's motion must be denied. The
Government 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 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 (West
2011). Presentation of a written claim, and action on or
rejection of the claim are conditions precedent to suit.
Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201,
208-09 (Cal. 2007) as modified (Oct. 10, 2007) superseded by
statute on other grounds as recognized by Rubenstein v.
Doe No. 1, 3 Cal.5th 903, 905 (2017), as modified on
denial of reh'g (Nov. 1, 2017); State v. Superior
Court of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239
(Cal. 2004); Mabe v. San Bernardino Cnty. Dep't of
Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001).
To state a tort claim against a public employee, a plaintiff
must allege compliance with the Government Claims Act.
Shirk, 42 Cal.4th at 209; Bodde, 32 Cal.4th
at 1239; Mangold v. California Pub. Utilities
Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995);
Karim, 839 F.2d at 627. Plaintiff has not alleged
compliance with the Government Claims Act, and, therefore
fails to state a cognizable state law claim. Thus,
Plaintiff's motion to amend should be denied, without
prejudice, as futile.
on the foregoing, it is HEREBY RECOMMENDED that
Plaintiff's motion to amend the complaint filed on