United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO AMEND THE
COMPLAINT
JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE
In this
excessive force claim under 42 U.S.C. § 1983, Plaintiff
Suzanne Steinmeier (“Plaintiff”) moves to amend
her Complaint by naming California Highway Patrol (CHP)
Officers Jason Hughes and Ralph Ketcher as Doe Defendants 3
and 4, despite the expiration of the deadline to amend her
Complaint in the court's Scheduling Order. (Doc. No. 35.)
She also seeks to amend her sole cause of action currently
before the court and add a second count based on police
bystander liability and conspiracy. (Doc. No. 38.) For the
below reasons, the motion is DENIED.
I.
BACKGROUND
The
parties do not dispute that on the evening of April 27, 2015,
Plaintiff and her wife, Michelle Rivera
(“Rivera”), led officers from the San Diego
County Sherriff's Department and the California Highway
Patrol (CHP) on a vehicle chase. A Sheriff's Department
helicopter joined the pursuit. Plaintiff and Rivera
ultimately abandoned the vehicle and fled on foot into a dark
riverbed. Multiple officers, including two Sheriff's
Deputies and a police dog, pursued the suspects into the
riverbed. Police eventually located Plaintiff and Rivera and
arrested them. During the arrest, Rivera was bit by the
police dog and Plaintiff was struck multiple times by police.
Sheriff's Deputies Frank Leyva (the dog handler) and
Kenneth Edwards admit to striking Plaintiff.
On
April 26, 2016, Rivera, but not Plaintiff, filed an excessive
force claim against Deputy Leyva and others in the U.S.
District Court for the Central District of California.
See Rivera v. Cty. of San Diego, Case No. ED CV
16-795 PSG (KSx), 2017 WL 5643151, at *1 (C.D. Cal. Nov. 14,
2017). The case was based on the same incident, but involved
different uses of force, i.e. a police dog bit Rivera and
police officers struck Plaintiff. The case went to trial in
June 2017 and the jury returned a verdict in favor of the
defendants. Id. The verdict was subsequently
affirmed. 771 Fed.Appx. 436, 437 (9th Cir. 2019).
On
March 27, 2017, Plaintiff filed suit in state court against
Deputies Leyva and Edwards, as well as Doe Defendants 1
through 10.[1] (Doc. Nos. 1 at 2, 1-5 at 4.) The
Complaint described Does 1 through 10 as law enforcement
officers who accompanied Deputies Leyva and Edwards into the
riverbed, (Doc. No. 1-5 at 6-7), and who observed excessive
force being used against Plaintiff and failed to intervene,
(id. at 15-16). Does 1 through 5 were also described
as officers who, in addition to Deputies Leyva and Edwards,
used force against Plaintiff. (Id. at 9.) At the
time of filing her suit, Plaintiff knew that CHP Officers
were involved in the vehicle pursuit, but Plaintiff contends
she was unaware that CHP Officers used force against her
because police reports only revealed that Sheriff's
Deputies used forced. (Doc. No. 35 at 3.) According to
Plaintiff, the CHP reports in her possession at the time
indicated that the only CHP Officers involved were Brian
Keene and Willis Whited. (Id. at 4.)
On July
16, 2017, Plaintiff filed her First Amended Complaint. (Doc.
No. 1-5 at 119-21.) On December 26, 2017, Plaintiff filed her
Second Amended Complaint. (Doc. No. 1-6 at 49.) The Second
Amended Complaint is the version currently before the court,
although it was later amended a third time to name CHP
Officers Keene and Whited as Does 1 and 2. (Doc. Nos. 5-2,
5-3.)
By June
13, 2018, Plaintiff possessed an emergency room record in
which unidentified CHP Officers reportedly told
Plaintiff's emergency room doctor that CHP Officers
punched Plaintiff. (Id. at 3-4.) Plaintiff's
counsel used the emergency room record in a deposition of the
doctor. (Id. at 4.) Plaintiff was also aware that
CHP Officer Keene was at the hospital. (Id.)
Plaintiff claims this evidence, when compared to the CHP
reports she had in her possession, demonstrated a cover-up.
(Id.) Therefore, on June 13, 2018, Plaintiff amended
the Complaint, which was still in state court, for the third
time by naming CHP Officers Keene and Whited as Does 1 and 2.
(Doc. Nos. 5-2, 5-3.)
On July
16, 2018, Keene and Whited removed the case to federal court.
(Doc. No. 1.) In August of 2018, Deputies Leyva and Edwards,
as well as the County of San Diego, filed motions for
judgment on the pleadings, (Doc. Nos. 8, 9), which the court
denied in part and granted in part on December 28, 2018,
(Doc. No. 13). On March 25, 2019, Magistrate Judge Gallo set
an early neutral evaluation conference, case management
conference, and status conference for May 8, 2019. (Doc. No.
14.) On May 1, 2019, Plaintiff served her first request for
production of documents on CHP Officers Keene and Whited.
(Doc. No. 35 at 6.) On May 9, 2019, Judge Gallo issued a
scheduling order setting June 7, 2019 as the last day for
Plaintiff to amend her Complaint.[2] (Doc. No. 20.) On June 7,
2019, the deadline for Plaintiff to amend her Complaint
passed. (Id.) On June 27, 2019, Plaintiff was served
with a response to her May 1, 2019 discovery
request.[3] (Doc. No. 35 at 6.) Plaintiff states that
she did not “receive” the response until July 2,
2019. (Id.)
After
receiving the discovery response from CHP Officers Keene and
Whited on July 2, 2019, Plaintiff claims she knew the
identities of CHP Officers Hughes and Ketcher and understood
the significance of their involvement. (Id. at 5.)
Plaintiff claims this “new” evidence showed that
Hughes and Ketcher were with Deputy Leyva as back-up officers
when his dog bit Rivera and Plaintiff was arrested.
(Id.) Plaintiff also contends the evidence shows
that Hughes and Ketcher were the ones who struck Plaintiff,
and if not, they condoned the strikes and are liable as
bystanders. (Id.)
On
August 15, 2019, Plaintiff filed two “notices of
pending suit, ” directed to Hughes and Ketcher,
purporting to inform them that they were Doe Defendants 3 and
4. (Doc. Nos. 26, 27.) On August 16, 2019, Deputies Leyva and
Edwards filed a notice of intent to oppose the notices. (Doc.
No. 28.) On August 21, 2019, the court interpreted the
notices as an attempt to amend the Complaint without first
seeking leave to amend and ordered Plaintiff to file any
motion to amend the Complaint and/or join a party by
September 2, 2019. (Doc. No. 33.) On September 2, 2019,
Plaintiff filed the instant motion seeking to name Hughes and
Ketcher as Does 3 and 4. (Doc. No. 35.) On September 4, 2019,
Plaintiff deposed Hughes and Ketcher. (Doc. No. 38 at 2.)
Plaintiff also deposed the Sheriff's Department
helicopter pilot and confirmed that Hughes and Ketcher were
“probably” the two CHP Officers that were with
Deputy Leyva. (Doc. No. 51 at 14-15.) On September 6, 2019,
fact discovery closed. (Doc. No. 20 at 2.) On September 9,
2019, Plaintiff filed a “supplemental
declaration” requesting leave to further amend her
Complaint by adding a claim of conspiracy to obstruct justice
under section 1983 and changing her current theory of
liability. (Doc. No. 38.) On September 23, 2019, CHP Officers
Keene and Whited, and Deputies Leyva and Edwards, filed
responses in opposition. (Doc. Nos. 45, 47.) On September 30,
2019, Plaintiff filed her reply. (Doc. No. 51.)
II.
LEGAL STANDARD
Granting
leave to amend a complaint is within the discretion of the
trial court. Swanson v. U.S. Forest Serv., 87 F.3d
339, 343 (9th Cir. 1996). Federal Rule of Civil Procedure
16(b) requires courts to issue scheduling orders limiting the
time to amend pleadings and complete discovery. Fed.R.Civ.P.
16(b)(1), (b)(3)(A). Under Rule 16(b)(4), “[a] schedule
may be modified only for good cause and with the judge's
consent.” Rule 16(b)(4) therefore applies when a
plaintiff seeks to amend the complaint after the deadline in
the pretrial scheduling order for amending the complaint has
passed. Coleman v. Quaker Oats Co., 232
F.3d 1271, 1294 (9th Cir. 2000). As explained by the Ninth
Circuit:
Unlike Rule 15(a)'s liberal amendment policy which
focuses on the bad faith of the party seeking to interpose an
amendment and the prejudice to the opposing party, Rule
16(b)'s “good cause” standard primarily
considers the diligence of the party seeking the amendment.
The district court may modify the pretrial schedule “if
it cannot reasonably be met despite the diligence of the
party seeking the extension.” Moreover, carelessness is
not compatible with a finding of diligence and offers no
reason for a grant of relief. Although the existence or
degree of prejudice to the party opposing the modification
might supply additional reasons ...