The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 ADRIAN SOLORIO, 1:19-cv-00688-NONE-GSA-PC
12 Plaintiff, ORDER DENYING PLAINTIFF’S REQUEST
FOR LEAVE TO AMEND THE COMPLAINT
13 vs. (ECF No. 23.)
14 SULLIVAN, et al.,
15 Defendants.
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18 I. INTRODUCTION
19 On March 30, 2021, the court issued findings and recommendations, recommending that
20 this case proceed with Plaintiff’s medical and excessive force claims found cognizable by the
21 court, and that all other claims be dismissed for Plaintiff’s failure to state a claim. (ECF No. 22.)
22 Plaintiff was granted fourteen days in which to file objections to the findings and
23 recommendations. (Id.)
24 On April 12, 2021, Plaintiff filed a document titled “Objections to Magistrate Judge
25 Findings and Recommendations.” (ECF No. 23.) However, Plaintiff did not object to the
26 findings and recommendations in said document, instead he submitted a proposed amended
27 complaint. The court construes Plaintiff’s submission of the proposed amended complaint as a
28 request by Plaintiff to file the amended complaint.
1 II. LEAVE TO AMEND – RULE 15(a)
2 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
3 pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is
4 one to which a responsive pleading is required, 21 days after service of a responsive pleading or
5 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ.
6 P. 15(a)(1). Otherwise, a party may amend its pleading only with the opposing party’s written
7 consent or the court’s leave, and the court should freely give leave when justice so requires. Fed.
8 R. Civ. P. 15(a)(2). Here, Plaintiff has previously amended the complaint and no defendants
9 have appeared in the case. Therefore, Plaintiff requires leave of court to file an amended
10 complaint.
11 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
12 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)
13 (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the
14 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
15 delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is
16 insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan,
17 Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58
18 (9th Cir. 1999)).
19 III. ANALYSIS
20 Background
21 Plaintiff filed the Complaint commencing this action on April 30, 2019, in the United
22 States District Court for the Northern District of California. (ECF No. 1.) On May 9, 2019, the
23 case was transferred to this court. (ECF No. 7.)
24 On August 17, 2020, the court screened the Complaint and found that Plaintiff stated
25 cognizable claims against defendants Ottsman and Chavez for use of excessive force against
26 Plaintiff in violation of the Eighth Amendment, but no other claims. (ECF No. 17.) The court
27 issued a screening order requiring Plaintiff to either file an amended complaint or notify the court
28 of his willingness to proceed only on the cognizable excessive force claims against defendants
1 Ottsman and Chavez. (Id.) On September 14, 2020, Plaintiff filed the First Amended Complaint.
2 (ECF No. 18.)
3 On September 25, 2020, the court screened the First Amended Complaint and issued an
4 order requiring Plaintiff to either (1) file a Second Amended Complaint or (2) notify the court of
5 his willingness to proceed only with the excessive force claims against defendants Ottsman and
6 Chavez found cognizable by the court. (ECF No. 20.) On October 8, 2020, Plaintiff filed the
7 Second Amended Complaint. (ECF No. 21.)
8 On March 30, 2021, the court issued findings and recommendations, recommending that
9 this case proceed with the Second Amended Complaint against Defendants Ottsman and Chavez
10 on Plaintiff’s medical claims under the Eighth Amendment; and against Defendants Ottsman,
11 Chavez, Clayton, Gratokoski, and Cardenas for use of excessive force under the Eighth
12 Amendment; and that all other claims and defendants be dismissed from this action based on
13 Plaintiff’s failure to state a claim. (ECF No. 22.)
14 Discussion
15 Plaintiff now submits a proposed amended complaint, which if accepted by the court
16 would be Plaintiff’s Third Amended Complaint. Plaintiff’s request for leave to amend must be
17 denied because it would be futile for Plaintiff to file the proposed Third Amended Complaint.
18 The proposed Third Amended Complaint names defendants Ottsman, Chavez, Clayton,
19 Gratokoski, and Cardenas, who were all named in the Second Amended Complaint. Plaintiff
20 again brings excessive force claims against defendants Ottsman, Chavez, Clayton, Gratokoski,
21 and Cardenas, and medical claims against defendants Ottsman and Chavez. In the pending
22 findings and recommendations, the court found that Plaintiff states cognizable claims for
23 excessive force and insufficient medical care against these same defendants in the Second
24 Amended Complaint.
25 Plaintiff has not shown that he has any new evidence to support his medical claims against
26 Defendants Ottsman and Chavez, his excessive force claims against Defendants Ottsman,
27 Chavez, Clayton, Gratokoski, and Cardenas, or any other claim against any of the named
28 Defendants. Plaintiff alleges in the proposed amended complaint that defendants Clayton,
1 Gratokoski, and Cardenas failed to properly train defendants Ottsman and Chavez. This is a state
2 law claim and as the court found in the findings and recommendations, Plaintiff fails to state any
3 state law claims because he has not alleged compliance with the state’s requirement to file a
4 timely claim with the Victim Compensation and Government Claims Board. Plaintiff also
5 alleges in the proposed amended complaint that officers harassed him with obscenities because
6 of his disabilities. As discussed in the findings and recommendations, verbal harassment does
7 not rise to the level of a constitutional violation and therefore Plaintiff fails to state a claim for
8 harassment. As such, it would be futile for Plaintiff to file a Third Amended Complaint with the
9 same claims he brought in the Second Amended Complaint, which the court has already
10 discussed and analyzed in the findings and recommendations. Therefore, Plaintiff’s request for
11 leave to amend must be denied as futile.
12 IV. CONCLUSION
13 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for leave to
14 amend the complaint, filed on April 12, 2021, is DENIED.
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IT IS SO ORDERED.
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17 Dated: April 15, 2021 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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