# (PC) Solorio v. Sullivan > District Court, E.D. California · April 15, 2021 URL: https://www.frixlaw.com/law-library/cases/10026675 ## Case - **Court:** District Court, E.D. California - **Decided:** April 15, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10026675 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 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. 16 17 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. 15 IT IS SO ORDERED. 16 17 Dated: April 15, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10026675. Public record. Not legal advice.