Brian S. Faile v. Michael Hope Michael Surrick John Does I Through III , 70 F.3d 119 ( 1995 )

70 F.3d 119

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Brian S. FAILE, Plaintiff-Appellant,
v.
Michael HOPE; Michael Surrick; John Does I through III,
Defendants-Appellees.

No. 94-17235.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1995.*
Decided Nov. 9, 1995.

Before: GOODWIN, PREGERSON, and REINHARDT, Circuit Judges.

1

MEMORANDUM**

2

Brian S. Faile, a Nevada state prisoner, appeals the district court's summary judgment for defendants in his 42 U.S.C. Sec. 1983 action alleging violations of the Fourth Amendment's guarantee against use of excessive force and unreasonable searches and seizures. Faile also appeals the district court's denial of his request for leave to amend his complaint. We have jurisdiction under 28 U.S.C. Sec. 1291.

3

After a careful review of the record, we conclude that the district court did not err by granting summary judgment for defendants on Faile's excessive force claim. See Scott v. Henrick, 39 F.3d 912, 914 (9th Cir.1994). We also conclude that the district court did not err by granting summary judgment for defendants Hope and Surick on Faile's warrantless search claim. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).

4

We conclude, however, that the district court erred by not granting Faile's motion for leave to amend to substitute Officers Sharp and Geary for two of the John Doe defendants. See Fed.R.Civ.P. 15(c); G.F. Co. v. Pan Ocean Shipping Co., 23 F.3d 1498, 1502-03 (9th Cir.1994). The district court did not abuse its discretion by denying Faile's motion for leave to amend as to all other defendants and claims. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1520 (9th Cir.1983), cert. denied, 465 U.S. 1081 (1984).

5

Each party to bear its own costs on appeal.

6

AFFIRMED in part, REVERSED in part, and REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Faile's "Motion to File Late Reply Brief and Motion to Exceed 15 Page (Reply Brief) Limit" is granted. The panel has reviewed Faile's Reply Brief

**

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