(PC) McMillan v. Delgado ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PATRICK M. McMILLIAN, ) Case No.: 1:19-cv-00444-LJO-SAB (PC) ) 12 Plaintiff, ) ORDER VACATING DECEMBER 9, 2019 ) FINDINGS AND RECOMMENDATION 13 v. ) [ECF No. 26] 14 O. DELGADO, et.al., ) ) FINDINGS AND RECOMMENDATIONS 15 Defendants. ) RECOMMENDING PLAINTIFF’S MOTION FOR ) LEAVE TO AMEND BE GRANTED 16 ) ) 17 ) [ECF Nos. 23, 24, 28] 18 Plaintiff Patrick M. McMillian is appearing pro se in this civil rights action pursuant to 42 19 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 I. 22 RELEANT BACKGROUND 23 This action is proceeding against Defendants O. Delgado, N. Romero, D. Brown, C. Riley, B. 24 Jones, M. Negrete, and J. Dunnahoe for excessive force in violation of the Eighth Amendment. 25 Defendants filed an answer to the complaint on July 1, 2019. After an unsuccessful settlement 26 conference, the Court issued the discovery and scheduling order on September 11, 2019. 27 /// 28 /// 1 On November 15, 2019, Plaintiff filed a motion to amend the complaint, along with a proposed 2 amended complaint. (ECF Nos. 23, 24.) Defendants filed an opposition on December 9, 2019. (ECF 3 No. 25.) 4 On December 9, 2019, the Court issued a Findings and Recommendation recommending that 5 Plaintiff’s motion to amend be denied. Plaintiff sought to amend the complaint because he 6 “determined that excessive force is not his cause of action.” (ECF No. 23, at 1.) “Plaintiff realizes 7 that the appropriate cause of action is Negligence.” (Id.) The Court denied Plaintiff’s motion to 8 amend because he failed to allege compliance with the Government Claims Act. (ECF No. 26.) 9 On December 20, 2019, Plaintiff filed objections to the Findings and Recommendation, along 10 with a separate motion for leave to correct and amend the complaint to reflect that he has complied 11 with the Government Claims Act. (ECF Nos. 27, 28.) 12 II. 13 DISCUSSION 14 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s pleading 15 once as a matter of course twenty-one days after serving, or if a response was filed, within twenty-one 16 days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend only by 17 leave of the court or by written consent of the adverse party, and leave shall be freely given when justice 18 so requires. Fed. R. Civ. P. 15(a)(2). 19 Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’” 20 AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. 21 Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices 22 the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is 23 futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not 24 bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens 25 v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The 26 burden to demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v. 27 Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing of any of the 28 remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave to amend. 1 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, undue delay 2 alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th 3 Cir. 1999). However, “[f]utility of amendment can, by itself, justify the denial of a motion for leave to 4 amend. Bonin v. Calderon, 59 F.3d 814, 845 (9th Cir. 1995); Miller v. Rykoff-Sexton, 845 F.2d 209, 5 214 (9th Cir. 1988). 6 Plaintiff seeks to amend the complaint because he “determined that excessive force is not his 7 cause of action.” (ECF No. 23, at 1.) “Plaintiff realizes that the appropriate cause of action is 8 Negligence.” (Id.) The Court denied Plaintiff’s motion to amend because he failed to allege 9 compliance with the Government Claims Act. (ECF No. 26.) In his December 20, 2019, objections to 10 the Findings and Recommendations and motion to correct and/amend the complaint, Plaintiff contends 11 that he has complied with the Government Claims Act. (ECF Nos. 27, 28.) In the amended 12 complaint, Plaintiff alleges “[t]he negligence violated Plaintiff McMillan’s rights and constituted cruel 13 and unusual punishment under the 8th. Amendment to the United States Constitution.” (ECF No. 24 14 at 4.) Liberally construing Plaintiff’s amended complaint, as this Court must, it appears that Plaintiff 15 is attempting to proceed on both a claim for excessive force and negligence. 16 The Court finds no bad faith or futility in Plaintiff’s proposed amendment. The proposed 17 amended complaint arises from the same events in the original complaint. In addition, the Court does 18 not find undue delay or prejudice to Defendants in allowing Plaintiff to amend to add a state law claim 19 of negligence at this juncture. 20 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 21 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the action 22 within such original jurisdiction that they form part of the same case or controversy under Article III 23 [of the Constitution],” with specific exceptions. “Pendent jurisdiction over state claims exists when 24 the federal claim is sufficiently substantial to confer federal jurisdiction, and there is a ‘common 25 nucleus of operative fact between the state and federal claims.’” Brady v. Brown, 51 F.3d 810, 816 26 (9th Cir. 1995) (quoting Gilder v. PGA Tour, Inc., 936 F.2d 417, 421 (9th Cir. 1991)). “[O]nce 27 judicial power exists under § 1367(a), retention of supplemental jurisdiction over state law claims 28 under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). 1 Here, because the Court has determined that Plaintiff states a cognizable Eighth Amendment 2 claim against Defendants O. Delgado, N. Romero, D. Brown, C. Riley, B. Jones, M. Negrete, and J. 3 Dunnahoe pursuant to § 1983, the Court, in the exercise of its discretion, will also exercise 4 supplemental jurisdiction over Plaintiff’s California negligence claim, which appears to rise from the 5 same case or controversy as Plaintiff’s Eighth Amendment claim. However, at this stage of the 6 proceedings, the Court makes no determination as to the viability of Plaintiff’s negligence claim. See, 7 e.g., King v. Chokatos, No. 1:12-cv-1936-LJO-GSA-PC, 2015 WL 5834230, at *6 (E.D. Cal. Oct. 1, 8 2015). Accordingly, the Court will recommend that Plaintiff’s motion to amend be granted, and this 9 action proceed on Plaintiff’s Eighth Amendment claim and California negligence claim. 10 III. 11 ORDER AND RECOMMENDATIONS 12 Based on the foregoing, it is HEREBY ORDERED that The December 9, 2019 Findings and 13 Recommendation (ECF No. 26) is VACATED. 14 Further, it is HEREBY RECOMMENDED that: 15 1. Plaintiff’s motion to amend the complaint (ECF No. 23) be granted; and 16 2. The Clerk of Court be directed to file the amended complaint lodged on November 15, 17 2019 (ECF No. 24). 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 These Findings and Recommendations will be submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 3 || after being served with these Findings and Recommendations, the parties may file written objections 4 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 5 || Recommendations.” The parties are advised that failure to file objections within the specified time 6 || may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 7 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 || IT IS SO ORDERED. Al (ee 10 || Dated: _ January 15, 2020 OF 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28