United States District Court, E.D. California
PATRICK M. McMILLIAN, Plaintiff,
O. DELGADO, et.al., Defendants.
ORDER VACATING DECEMBER 9, 2019 FINDINGS AND
RECOMMENDATION [ECF NO. 26] FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF'S MOTION FOR LEAVE TO AMEND BE
GRANTED [ECF NOS. 23, 24, 28]
Patrick M. McMillian 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.
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.
November 15, 2019, Plaintiff filed a motion to amend the
complaint, along with a proposed amended complaint. (ECF Nos.
23, 24.) Defendants filed an opposition on December 9, 2019.
(ECF No. 25.)
December 9, 2019, the Court issued a Findings and
Recommendation recommending that Plaintiff's motion to
amend be denied. Plaintiff sought to amend the complaint
because he “determined that excessive force is not his
cause of action.” (ECF No. 23, at 1.) “Plaintiff
realizes that the appropriate cause of action is
Negligence.” (Id.) The Court denied
Plaintiff's motion to amend because he failed to allege
compliance with the Government Claims Act. (ECF No. 26.)
December 20, 2019, Plaintiff filed objections to the Findings
and Recommendation, along with a separate motion for leave to
correct and amend the complaint to reflect that he has
complied with the Government Claims Act. (ECF Nos. 27, 28.)
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.
seeks to amend the complaint because he “determined
that excessive force is not his cause of action.” (ECF
No. 23, at 1.) “Plaintiff realizes that the appropriate
cause of action is Negligence.” (Id.) The
Court denied Plaintiff's motion to amend because he
failed to allege compliance with the Government Claims Act.
(ECF No. 26.) In his December 20, 2019, objections to the
Findings and Recommendations and motion to correct and/amend
the complaint, Plaintiff contends that he has complied with
the Government Claims Act. (ECF Nos. 27, 28.) In the amended
complaint, Plaintiff alleges “[t]he negligence violated
Plaintiff McMillan's rights and constituted cruel and
unusual punishment under the 8th. Amendment to the United
States Constitution.” (ECF No. 24 at 4.) Liberally
construing Plaintiff's amended complaint, as this Court
must, it appears that Plaintiff is attempting to proceed on
both a claim for excessive force and negligence.
Court finds no bad faith or futility in Plaintiff's
proposed amendment. The proposed amended complaint arises
from the same events in the original complaint. In addition,
the Court does not find undue delay or prejudice to
Defendants in allowing Plaintiff to amend to add a state law
claim of negligence at this juncture.
to 28 U.S.C. § 1367(a), in any civil action in which the
district court has original jurisdiction, the district court
“shall have supplemental jurisdiction over all other
claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article
III [of the Constitution], ” with specific exceptions.
“Pendent jurisdiction over state claims exists when the
federal claim is sufficiently substantial to confer federal
jurisdiction, and there is a ‘common nucleus of
operative fact between the state and federal
claims.'” Brady v. Brown, 51 F.3d 810, 816
(9th Cir. 1995) (quoting Gilder v. PGA Tour, Inc.,
936 F.2d 417, 421 (9th Cir. 1991)). “[O]nce judicial
power exists under § 1367(a), retention of supplemental
jurisdiction over state law claims under 1367(c) is
discretionary.” Acri v. Varian Assoc., Inc.,
114 F.3d 999, 1000 (9th Cir. 1997).
because the Court has determined that Plaintiff states a
cognizable Eighth Amendment claim against Defendants O.
Delgado, N. Romero, D. Brown, C. Riley, B. Jones, M. Negrete,
and J. Dunnahoe pursuant to § 1983, the Court, in the
exercise of its discretion, will also exercise supplemental
jurisdiction over Plaintiff's California negligence
claim, which appears to rise from the same case or
controversy as Plaintiff's Eighth Amendment claim.
However, at this stage of the proceedings, the Court makes no
determination as to the viability of Plaintiff's
negligence claim. See, e.g., King v.
Chokatos, No. 1:12-cv-1936-LJO-GSA-PC, 2015 WL 5834230,
at *6 (E.D. Cal. Oct. 1, ...