Cleveland v. Curry et al
Filing
92
ORDER by Judge Charles R. Breyer denying 86 Motion to Amend/Correct. (crblc1, COURT STAFF) (Filed on 8/7/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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IVAN VERNARD CLEVELAND, ET AL.,
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No. C 07-02809 CRB
ORDER DENYING MOTION TO
AMEND AND FOR DECLARATION
RE QUALIFIED IMMUNITY
Plaintiffs,
v.
BEN CURRY, WARDEN, ET AL.,
Defendants.
/
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Plaintiffs, inmates at California Training Facility - Soledad (“CTF”), brought this
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civil rights lawsuit in May 2007, alleging that prisoners at CTF were subjected to
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inappropriate sexual contact during clothed body searches and that their repeated complaints
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were not properly investigated by supervisors. See Mot. at 2-3 (dkt. 86). Plaintiffs further
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allege that the “upper chain of command at the prison . . . were well-informed of charges . . .
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[and that rather] than taking effective steps to determine the existence of the threat, and
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remove it, . . . they constructed a cover-up. . . .” Id. at 3. Plaintiffs have now filed a “Motion
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for Leave to Amend Complaint and for a Declaration That No Defendant Enjoys Qualified
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Immunity.” See generally id. Pursuant to Civil Local Rule 7-1, the Court finds the Motion
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suitable for resolution without oral argument, and therefore VACATES the hearing currently
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set for Friday, August 10.
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Plaintiffs first “ask the Court to find . . . that . . . none of the defendants, old or new, is
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entitled to Qualified Immunity in defense of these claims. The actions alleged, and shown in
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the complaints and affidavits of the prisoners, obviously deprived the plaintiffs of the right to
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be free of Cruel and Unusual Punishment, in violation of ‘clearly established’ law.” Id. at
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10-11. Not only are Plaintiffs’ statements wholly conclusory, but they seem to acknowledge
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that this subject would be more appropriately dealt with on summary judgment: “[W]e
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believe the evidence described herein precludes summary judgment, and so the motion will
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lie, because defendants’ inevitable demand for immunity will raise the same question,
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regardless of which side brings it up.” Id. at 11. Accordingly, the Court denies Plaintiffs’
United States District Court
For the Northern District of California
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request for a declaration as to qualified immunity, without prejudice to Plaintiffs’ raising that
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argument again on summary judgment.
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Plaintiffs next request to amend in order to add, as defendants, three other members of
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the prison command staff who allegedly acted jointly with the defendant former warden to
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condone and cover up the sexual assaults against plaintiffs. Id. at 1. Plaintiffs also seek
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leave to amend to add additional plaintiffs. They argue that “other prisoners who came
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forward individually are also legitimate claimants in the premises of this case, as members of
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a class.” Id. at 7.
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“[A] district court need not grant leave to amend where the amendment: (1) prejudices
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the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4)
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is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006).
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Amendments seeking to add new parties carry a heavier burden than those seeking to add
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claims. See Union Pac. R. Co. v. Nevada Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991).
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In addition, once a pretrial scheduling order has been issued, “no later amendment of
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pleadings is permitted unless the court first modifies the scheduling order to permit such
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amendment.” Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide: Fed. Civ. Pro. Before
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Trial, at ¶ 8:1469 (The Rutter Group 2010). Modifying a schedule requires “good cause.”
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Fed. R. Civ. P. 16(b)(4); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609
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(9th Cir. 1992). In Jackson v. Bank of Hawaii, the Ninth Circuit found that an appropriate
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“factor in determining whether the district court properly denied the motion for leave to
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amend is whether appellants unduly delayed in filing their motion.” 902 F.2d 1385, 1388
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(9th Cir. 1990) (emphasis added) (further holding that “[t]he district court . . . properly
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denied appellants’ motion for leave to file an amended complaint” because plaintiffs’ seven-
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month delay was “inexplicable and unjustified.”)
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Here, Plaintiffs’ delay in filing their Motion (18-24 months) is substantially longer
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than the delay in Jackson (7 months). See Opp’n at 2. In late 2009, Defendants produced
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complaints prepared by other inmates. Id. Moreover, Plaintiffs’ counsel deposed potential
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defendants Colleen Noll and Mike Biggs on April 30, 2010, and Inez Guerra on December
United States District Court
For the Northern District of California
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20, 2010. Id.; see also Mot. at 8. Plaintiffs had knowledge of the proposed additional
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Plaintiffs for more than two years, and of Defendants for over eighteen months, and do not
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satisfactorily explain why they waited until now to file this Motion. Defendants
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compellingly argue that “[a]n amendment at this late stage of litigation would significantly
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prejudice Defendants, who are in the process of drafting a summary judgment motion and
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preparing for a trial that is scheduled to begin in early December. . . . [It] would require
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Defendants to conduct additional depositions and other discovery, and impede their ability to
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complete a dispositive motion.” See Opp’n at 2-3. Because Plaintiffs “unduly delayed” in
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bringing this Motion, see Jackson, 902 F.2d at 1388, the Court denies Plaintiffs’ request for
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leave to amend.
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For the foregoing reasons, the Court DENIES Plaintiffs’ Motion in its entirety.
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IT IS SO ORDERED.
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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE
Dated: August 7, 2012
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