Unpublished Disposition, 908 F.2d 977 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 977 (9th Cir. 1989)

Julian LEWIS, Plaintiff-Appellant,v.CITY AND COUNTY OF SAN FRANCISCO; Frank Jordan, Chief,Defendants-Appellees.

No. 89-15692.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1990.Decided July 24, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM* 

Julian Lewis ("Lewis")1  appeals the district court's grant of summary judgment in favor of William Dodds ("Dodds"), George Paganucci ("Paganucci"), Daniel May ("May") and the City and County of San Francisco ("CCSF"), collectively the defendants, on Lewis' claims pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, and on his pendent state claims for intentional infliction of emotional distress and false arrest. We affirm.

BACKGROUND FACTS

On May 20, 1987, at approximately 1:30 p.m., San Francisco Police Officer Dodds spotted Lewis sitting in an automobile which was illegally parked in a yellow zone. As Dodds approached the vehicle on his motorcycle, Lewis moved over to the driver's seat and started the car. Dodds came up alongside the vehicle, indicated to Lewis that Lewis was to turn off the car and that Dodds was going to ticket the vehicle for being illegally parked. Lewis turned off the car. Dodds asked Lewis for a driver's license. Lewis subsequently produced both his driver's license and a California identification card. Dodds ran a check on the license and was informed by the DMV that Lewis' license was suspended.2  Dodds subsequently notified Lewis that the license was suspended. Dodds then cited Lewis for driving with a suspended license and kept the license. Lewis alleged that Dodds was rude and belligerent during this exchange.

Dodds subsequently finished writing the citation and asked Lewis to sign it. Lewis refused, indicating that his license was not suspended and that the car was not his. Lewis then got out of the car, explained that he going to the copy shop on the corner to call the desk sergeant, and proceeded to the shop. Dodds instructed Lewis that he was to remain by the car and that if Lewis proceeded into the shop, Dodds was going to arrest him for attempting to leave the scene. Lewis went into the copy shop and Dodds followed him. Dodds then ordered Lewis to come back out and sit in the car. Lewis subsequently returned to the car, sat in the driver's seat and started the engine. Dodds then reached into the car, took the keys out of the ignition, and informed Lewis that he was under arrest. Dodds also asked Lewis to sign the citations at that time. Lewis refused to do so.

After being placed under arrest, Lewis refused to exit the automobile. Dodds then called for backup assistance to help him in extracting Lewis from the vehicle. Police officer Paganucci arrived at the scene and attempted to assist Dodds in removing Lewis from the car. Lewis would not release his grip on the automobile. Police officer May then arrived and the three officers were finally able to get Lewis to release his hold on the automobile. During the course of the arrest, Dodds sprayed mace into Lewis' face to get him to release his hold on the car. Lewis also alleged that the officers harassed, assaulted and battered him. Lewis' hands were subsequently handcuffed behind his back and he was transported in a patrol car3  to a holding cell where he was once again asked to sign the citations. Lewis refused to sign and was placed in jail. Lewis was ultimately cited for illegally parking, driving with a suspended license and resisting arrest. All charges were later dropped.

Lewis filed a complaint in state court alleging five violations of his civil rights. The defendants subsequently removed the case to federal court. Discovery concluded in October of 1988. The trial was originally set for January 30, 1989, but was continued due to a conflict with another trial. The defendants then moved for summary judgment. Lewis subsequently moved to amend his complaint to "clarify" his first cause of action as one for excessive use of force by the individual officers. The district court granted defendants' motion and denied Lewis request for leave to amend. Lewis filed a timely appeal.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1343 and 1441(b). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the grant of summary judgment de novo. West Coast Theatre Corp. v. City of Portland, 897 F.2d 1519, 1525 (9th Cir. 1990). We determine, viewing the evidence in the light most favorable to the non-moving party, whether there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

The non-moving party cannot simply rest on the pleadings, but must present evidence "sufficient to establish the existence of an element essential to that party's case, and on which [he] will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The non-movant must show that "a fair-minded jury could return a verdict for [him] on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).

We review the district court's denial of a motion for leave to amend for abuse of discretion, "but such denial is 'strictly' reviewed in light of the strong policy permitting amendment." Moore v. Kayport Package Express, Inc., 885 F.2d 531, 537 (9th Cir. 1989) (quoting Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1206 (9th Cir. 1988)).

DISCUSSION

Lewis' original complaint alleged civil rights claims under 42 U.S.C. §§ 1981, 1983, and 1985, on grounds that the defendants' actions were racially motivated. However, he failed to present any evidence that racial slurs were used during the arrest or that the arrest was the result of racial animus. Thus, he does not contest the grant of summary judgment on the second and third causes of action, nor does he claim that he can support his first cause of action on the basis of race discrimination.

However, Lewis claims that he alleged facts sufficient to withstand summary judgment on his first cause of action, because that cause of action was also based upon a claimed use of excessive force by the officers.

Contrary to Lewis' assertions, the first cause of action does not, at any point, directly allege that excessive force was used against him. It does claim that he was "harassed, assaulted and battered," and that force was used. Of course, any touching whatsoever would lend itself to that kind of pleading. Since Lewis was handcuffed, it is undoubtedly true that he was touched. These allegations are reasonably viewed as a charge that the force used was inappropriate since it was motivated by racial considerations.

That view is buttressed by the parties' pretrial statement, which was supposed to set forth the substance of the action and the disputed points. See N.D. Cal. Dist.Ct.L.R. 235-7. The statement does not contain a whisper of a claim of excessive force. As the parties stated: "The issues to be decided are whether plaintiff was singled out and assaulted because of his race by the police officers when they arrested plaintiff. Additionally, it must be determined whether the imprisonment was proper and whether the defendants intended to inflict emotional distress." In the points of law section of the pretrial statement the parties said: "Plaintiff alleges under 42 U.S.C. Section 1983, that he was harassed and assaulted because he is a member of a racial minority."

The purpose of pretrial proceedings is to sharpen the issues, so that the parties (given the broad leeway allowed in the initial pleadings) can focus their preparation and so that the court, and the parties, will know just what issues are in dispute. As the district court pointed out, when Lewis finally indicated that he wanted to assert a claim of excessive force, that claim amounted to a wholly new theory. It was formulated on the eve of a summary judgment motion in a case that would actually have already gone to trial had the district court not been forced to continue the trial date. His assertion that everyone previously mistook his position is a bit disingenuous.4  We, therefore, hold that the district court properly limited Lewis to the theory that had informed the case up to that time. On that basis, the court's grant of the defendant's summary judgment motion was proper.

Lewis contends that the court abused its discretion in denying his request to file a first amended complaint. Fed. R. Civ. P. 15(a) provides that leave to amend should be "freely given when justice so requires." In deciding whether justice requires granting leave to amend, we consider "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore, 885 F.2d at 538. See also Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (listing same factors). These factors are not of equal weight. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). " [T]he most important [factor] is whether amendment would result in undue prejudice to the opposing party." William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1053 n. 68 (9th Cir. 1981), cert. denied, 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61 (1982). " [D]elay, by itself, is insufficient to justify denial of leave to amend." DCD Programs, 833 F.2d at 186.

Lewis contends that he could have amended the complaint to allege a meritorious cause of action. The defendants argue that Lewis' amendment was untimely and that to allow it would cause the defendants undue prejudice.

It is undisputed that Lewis made his motion for leave to amend after the defendants had filed a motion for summary judgment. Acri v. International Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398-99 (9th Cir.), cert. denied, 479 U.S. 816, 107 S. Ct. 73, 93 L. Ed. 2d 29 (1986), supports the defendant's position. In Acri, the plaintiff sought leave to amend after the defendants had filed for summary judgment. As the court said: " [L]ate amendments to assert new theories are not reviewed favorably when the facts and the theory have been out there since the inception of the cause of action." Id. at 1398. See also E.E.O.C. v. Boeing Co., 843 F.2d 1213, 1222 (9th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 222, 102 L. Ed. 2d 212 (1988) (court denied party right to amend complaint where party had had knowledge of allegations that it sought to include since before the filing of the suit). Cf. DCD Programs, 833 F.2d at 188 (leave to amend granted where discovery was still open, no trial pending and no pretrial conference scheduled).

Furthermore, we must consider Fed. R. Civ. P. 16. Its purpose is to permit the proper planning and scheduling of cases. As a result, district courts are encouraged to hold scheduling conferences and to set time limits. In this case, the court did just that. On March 11, 1988, it declared that the motion deadline was December 15, 1988. If Lewis wished to move to amend his pleadings, he should have done so within that time. As the district court pointed out, permitting a late amendment is disruptive to say the least. Again, Lewis' contention that he was proceeding on an excessive force claim all the time "sounds hollow and comes close to bad faith." Ascon Properties, Inc., 866 F.2d at 1161. That is particularly so in light of the pretrial statement.

Also, the effect of the proposed amendment was to completely alter the legal theory of the case. Therefore, the defendants would have been greatly prejudiced had the court allowed the amendment, since all of their discovery and pre-trial preparation was based upon defending a claim of racial discrimination.

Finally, we note that Lewis presented no evidence to support a claim of excessive force, and that raises a serious doubt regarding the futility prong of the test for amendments as well.

Therefore, on balance, we cannot say that the district court erred in denying Lewis' motion to amend.

Lewis' state law claims are equally without merit. In order to make out a claim for false imprisonment, Lewis was required to show that Dodds had no reasonable cause to believe that Lewis had committed a misdemeanor in his presence. See Cal.Pen.Code Sec. 836.5. "The issue of whether an arrest was made with reasonable cause is an issue of law to be decided by the court." Giannis v. City and County of San Francisco, 78 Cal. App. 3d 219, 225, 144 Cal. Rptr. 145 (1978).

The defendants presented evidence that Dodds believed that Lewis was driving with a suspended driver's license. A suspended license is not a valid driver's license.5  Moreover, Dodds had probable cause to believe that Lewis was trying to drive the car when Lewis got behind the steering wheel and started the ignition. That would have been a misdemeanor.6 

Lewis also contends that the court erred in granting summary judgment on his claim for intentional infliction of emotional distress. If his claim is based upon a claim of improper use of force, rather than upon racial discrimination, it fails because he did not present evidence to support its viability.

In any event, a claim for intentional infliction of emotional distress requires a showing that the three named officers had the requisite intent to harm him. Lewis points to no evidence in the record which shows that they did. The fact that the officers may, indeed, have caused Lewis some emotional distress is not sufficient to prove intentional infliction of emotional distress. See Cummings v. Farmers Ins. Exch., 202 Cal. App. 3d 1407, 1423, 249 Cal. Rptr. 568 (1988).

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Lewis is a black male

 2

The license was never, in fact, suspended. The DMV erroneously listed it as suspended

 3

Lewis claims that during the transport to the police station, May intentionally and repeatedly slammed on the brakes causing Lewis to fall forward into the seat and to hurt his back. Defendants deny that this occurred

 4

While not dispositive, it is interesting that Lewis did not plead pendent state claims for assault and battery, although he did plead claims for false imprisonment and infliction of emotional distress. This, too, suggests that the amount of force was not in issue

 5

The fact the DMV erroneously informed Dodds that the license had been suspended is irrelevant to the reasonableness of Dodds' belief that Lewis was carrying a suspended license. Dodds was entirely reasonable in relying upon the DMV's report. See Giannis, 78 Cal. App. 3d at 223-24

 6

Of course, an attempt to commit a misdemeanor is still a misdemeanor. See Cal.Pen.Code Sec. 664