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 SECOND
REQUEST FOR LEAVE TO AMEND THE
13 vs. COMPLAINT
(ECF No. 25.)
14 SULLIVAN, et al.,
FOURTEEN-DAY DEADLINE TO FILE
15 Defendants. OBJECTIONS TO THE FINDINGS AND
RECOMMENDATIONS
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19 I. INTRODUCTION
20 On March 30, 2021, the court issued findings and recommendations, recommending that
21 this case proceed with Plaintiff’s medical claims against defendants Ottsman and Chavez, and
22 excessive force claims against defendants Ottsman, Chavez, Clayton, Gratokoski, and Cardenas;
23 finally that all other claims be dismissed for Plaintiff’s failure to state a claim. (ECF No. 22.)
24 Plaintiff was granted fourteen days in which to file objections to the findings and
25 recommendations. (Id.)
26 On April 12, 2021, Plaintiff filed a document titled “Objections to Magistrate Judge
27 Findings and Recommendations.” (ECF No. 23.) However, Plaintiff did not object to the
28 findings and recommendations in said document; instead, he submitted a proposed amended
1 complaint. The court construed Plaintiff’s submission of the proposed amended complaint as a
2 request by Plaintiff to file the amended complaint, and issued an order on April 15, 2021, denying
3 Plaintiff’s motion to amend the complaint as futile. (ECF No. 24.)
4 On April 30, 2021, Plaintiff filed another motion for leave to amend the complaint. (ECF
5 No. 25.)
6 II. LEAVE TO AMEND – RULE 15(a)
7 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
8 pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is
9 one to which a responsive pleading is required, 21 days after service of a responsive pleading or
10 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ.
11 P. 15(a)(1). Otherwise, a party may amend its pleading only with the opposing party’s written
12 consent or the court’s leave, and the court should freely give leave when justice so requires. Fed.
13 R. Civ. P. 15(a)(2). Here, Plaintiff has previously amended the complaint and no defendants
14 have appeared in the case. Therefore, Plaintiff requires leave of court to file an amended
15 complaint.
16 “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
17 requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 445 F.3d 1132, 1136 (9th Cir. 2006)
18 (quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the
19 amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
20 delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is
21 insufficient to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan,
22 Inc., 244 F.3d 708, 712, 713 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58
23 (9th Cir. 1999)).
24 III. ANALYSIS
25 Plaintiff requests leave to file a Third Amended Complaint to add a defendant, reflect the
26 identity and actions of defendants Ottsman, Chavez, Clayton, Gratokoski and Cardenas, and to
27 show evidence that he filed a state government claim and medical paperwork along with his
28 original Complaint.
1 Plaintiff states that since the filing of the Complaint he discovered that defendant
2 Sullivan’s name is W. Sullivan. This is not new information. Plaintiff identified defendant
3 Sullivan as W. Sullivan in the original Complaint, First Amended Complaint, and Second
4 Amended Complaint. Plaintiff does not indicate that he has any new evidence against defendant
5 Sullivan, and the court found in the findings and recommendations that Plaintiff fails to state a
6 claim against defendant Sullivan. Thus, it would be futile for Plaintiff to amend the complaint
7 to identify defendant Sullivan as W. Sullivan.
8 Plaintiff also seeks to amend the complaint to reflect the identity and actions of defendants
9 Ottsman, Chavez, Clayton, Gratokoski and Cardenas. The court has already found cognizable
10 claims against these defendants in the Second Amended Complaint, and Plaintiff does not claim
11 to have any new identity or evidence pertaining to any of these defendants. Thus, it would be
12 futile for Plaintiff to amend the complaint to reflect the identity and actions of defendants
13 Ottsman, Chavez, Clayton, Gratokoski, and Cardenas.
14 With respect to Plaintiff’s state claims, Plaintiff states that he previously submitted proof
15 of his compliance with the Government Claims act and can re-submit it to the court if needed.
16 In fact, the court already has a copy of Plaintiff’s state claim which was submitted as an
17 attachment to Plaintiff’s original Complaint. However, as discussed next, Plaintiff’s claim is
18 insufficient to satisfy the state’s requirements.
19 Government Claims Act Requirements
20 “California’s Government Claims Act requires that a tort claim against a [state] public
21 entity or its employees for money or damages be presented to the [Department of General
22 Services] 1 no more than six months after the cause of action accrues.” Lopez v. Cate, No. 1:10-
23 cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code §§ 905.2,
24 910, 911.2, 945.4, 950-950.2). “Timely claim presentation is not merely a procedural
25 requirement, but is . . . a condition precedent to plaintiff’s maintaining an action against defendant
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1 The Department of General Services was formerly the Victim Compensation and
27 Government Claims Board. McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2
(E.D. Cal. Sept. 3, 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL
28 111748 (E.D. Cal. Jan. 12, 2021).
1 and thus an element of the plaintiff’s cause of action.” Id. (internal quotation marks and citations
2 omitted). The “obligation to comply with the Government Claims Act” is independent of the
3 obligation to exhaust administrative remedies pursuant to the Prison Litigation Reform Act.
4 McCoy v. Torres, No. 119CV01023NONEJLTPC, 2020 WL 5257842, at *2 (E.D. Cal. Sept. 3,
5 2020), report and recommendation adopted, No. 119CV01023NONEJLTPC, 2021 WL 111748
6 (E.D. Cal. Jan. 12, 2021) (citing McPherson v. Alamo, No. 3:15-cv-03145-EMC, 2016 WL
7 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore v. Col, 221 Cal. App. 4th 1372, 1376 (2013)).
8 The events at issue in this action allegedly occurred on August 10, 2018 at the California
9 Correctional Institution in Tehachapi, California. Plaintiff’s state claim, which was attached to
10 the original Complaint, is dated April 23, 2019, which is more than six months after the events
11 alleged in the Complaint. Thus it does not meet the state’s requirement to submit a claim within
12 six months of the accrual of the cause of action. Moreover, there is no evidence that Plaintiff
13 actually submitted the claim to the Department of General Services or that the claim was granted
14 or denied. Under these facts Plaintiff has not shown that he complied with the Government
15 Claims Act and it would therefore be futile for Plaintiff to amend the complaint to re-submit the
16 already received copy of the state claim that was attached to the original Complaint.
17 IV. CONCLUSION
18 As discussed above, the court finds that it would be futile for Plaintiff to amend the
19 complaint as requested in his second motion to amend. It would also be futile for Plaintiff to file
20 a Third Amended Complaint with the same claims brought in the Second Amended Complaint,
21 which the court has already discussed and analyzed in the findings and recommendations.
22 Therefore, Plaintiff’s request for leave to amend must be denied as futile. “A district court may
23 deny leave to amend when amendment would be futile.” Hartmann v. CDCR, 707 F.3d 1114,
24 1130 (9th Cir. 2013).
25 Plaintiff has already filed three complaints in this action with ample guidance from the
26 court and has stated cognizable claims in the Second Amended Complaint for inadequate medical
27 care and for use of excessive force. The court is persuaded that Plaintiff is unable to allege any
28 facts, based upon the circumstances he challenges, that would state any additional cognizable
1 claims. The court shall not consider any further motions to amend by Plaintiff. However,
2 Plaintiff shall be granted a fourteen-day extension of time in which to file objections to the
3 findings and recommendations.
4 Based on the foregoing, IT IS HEREBY ORDERED that:
5 1. Plaintiff’s motion for leave to amend the complaint, filed on April 30, 2021, is
6 DENIED;
7 2. The court shall not consider any further motions for leave to amend the complaint
8 submitted by Plaintiff in this case; and
9 3. Plaintiff is granted fourteen days from the date of service of this order in which to
10 file objections to the findings and recommendations issued on March 30, 2021.
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IT IS SO ORDERED.
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13 Dated: May 3, 2021 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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