1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 ALVIN HARRISON, Case No. 23-cv-00903-JD

10 Plaintiff, ORDER RE LEAVE TO AMEND AND 11 v. DISCOVERY

12 CITY OF SALINAS, et al., Defendants. 13

14 15 Pro se plaintiff Alvin Harrison asks for leave to file an amended complaint, Dkt. No. 40, 16 which the government defendants oppose, Dkt. No. 43. The proposed complaint is a sprawling 17 attack on a prior arrest and prosecution in state court. See Dkt. No. 40, Exh. 1. The request is 18 suitable for submission without oral argument. Civ. L.R. 7-1(b). Amendment is untimely and not 19 supported by “good cause,” Fed. R. Civ. P. 16(b)(4), and would be prejudicial and futile. 20 Consequently, leave is denied. The motion to extend the fact discovery cut-off, Dkt. No. 42, 21 which Harrison describes as “a follow up to [his] Motion for Leave to File First Amended 22 Complaint,” id. at 3, is denied as moot. 23 BACKGROUND 24 On September 5, 2021, Harrison had a fight with a security guard at a casino in Salinas, 25 CA, and “was asked to leave the premises.” Dkt. No. 1 ¶ 15. See also Dkt. No. 40, Exh. 001A 26 (“Affidavit of Fact”) ¶¶ 6-9. He was arrested by City of Salinas police officers, Dkt. No. 1 ¶ 16, 27 and charged with resisting arrest and disturbing the peace under California Penal Code sections 1 court judge sentenced him to 30 days in jail and one year of probation. Dkt. No. 40, Exh. 1 2 (proposed FAC) ¶ 50 (ECF p. 86). 3 An attorney subsequently filed on Harrison’s behalf this civil rights action, which alleges 4 use of excessive force during the arrest, against defendants City of Salinas and officers Victor 5 Cortina, Jose Luis Fletes, Kurt Han, Steven Villaneda, Michael Rivera, and Does 1-50. Dkt. 6 No. 1. The complaint presents five causes of action: violation of the Fourth and Fourteenth 7 Amendments, pursuant to

; violation of the Bane Act,

; 8 assault and battery; intentional infliction of emotional distress; and negligence. See

9 The Court held an initial case management conference on August 24, 2023, Dkt. No. 29, 10 and issued a case schedule setting a deadline of September 29, 2023, to add parties or amend 11 pleadings. Dkt. No. 30. The parties jointly stated in the case management statement that they did 12 “not anticipate any amendments to the pleadings.” Dkt. No. 25 at 5. 13 In October 2023, Harrison’s attorneys asked to withdraw, citing sections 3-700(C)(1)(a) 14 and (d) of the California Code of Professional Conduct. Dkt. No. 30. Withdrawal was granted on 15 the condition that the attorneys continue to advise Harrison of case filings for two months. Dkt. 16 No. 31. Harrison elected to proceed pro se. Dkt. No. 34. 17 Well after the deadline to amend, Harrison now proposes to file a massively different 18 complaint. Among other changes, he asks to add three new City of Salinas officials, who are said 19 to have of deprived Harrison of his constitutional rights by prosecuting him and “concealing the 20 fact that the [state] court is not an Article III Court and has not been duly established, ordained, or 21 authorized with judicial power and authority as mandated by the U.S. Constitution and an act of 22 Congress.” Dkt. No. 40, Exh. 1 ¶ 52 (ECF p. 86). 23 Harrison also seeks to add 33 new causes of action. See

at ECF pp. 135-208. To the 24 extent they are intelligible, they appear to concern purported jurisdictional defects in the state 25 criminal proceedings and an alleged cover-up. Only five of the proposed new causes of action 26 reference the arrest itself: the 24th and 25th causes of action, which assert that Harrison was 27 arrested without probable cause; the 30th cause of action for failure to intervene; the 32nd cause of 1 DISCUSSION 2 Harrison’s request is governed by Federal Rule of Civil Procedure 16(b)(4), and not the 3 more permissive standards of Rule 15, as Harrison suggests. That is because the Court set a 4 deadline to amend in a scheduling order that has long passed. “[W]hen a party seeks to amend a 5 pleading after the pretrial scheduling order’s deadline for amending the pleadings has expired, the 6 moving party must satisfy the ‘good cause’ standard of Federal Rule of Civil Procedure 16(b)(4), 7 which provides that ‘[a] schedule may be modified only for good cause and with the judge’s 8 consent,’ rather than the liberal standard of Federal Rule of Civil Procedure 15(a).” In re W. 9 States Wholesale Nat. Gas Antitrust Litig.,

(9th Cir. 2013), aff’d sub nom. 10 Oneok, Inc. v. Learjet, Inc.,

(2015) (quoting Fed. R. Civ. P. 16(b)(4)). See also 11 Johnson v. Mammoth Recreations, Inc.,

(9th Cir. 1992). 12 “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the party seeking 13 the amendment.” Johnson,

(citations omitted). “If that party was not diligent, the 14 inquiry should end.”

“The good cause standard typically will not be met where the party 15 seeking to modify the scheduling order has been aware of the facts and theories supporting 16 amendment since the inception of the action.” In re W. States Wholesale Nat. Gas Antitrust Litig., 17

(internal citation and quotation marks omitted). 18 To be sure, Harrison gets some leeway as a pro se litigant. Even so, nothing in the record 19 warrants the massive overhaul of his case at this late date. Harrison says he has “updated 20 information and developments in this case,” Dkt. No. 40 at 4, but never actually identified what 21 those may be. In addition, the proposed complaint indicates that the 33 new causes of action relate 22 to events Harrison personally experienced years ago. Why he did not raise these claims earlier is 23 not explained. These circumstances do not demonstrate a degree of diligence sufficient to warrant 24 amendment. See In re W. States Wholesale Nat. Gas Antitrust Litig.,

; Johnson, 25

; Neidermeyer v. Caldwell,

, 489 (9th Cir. 2017) (unpublished). 26 A strong likelihood of prejudice also weighs against leave to amend. Harrison asks to 27 hugely expand this case with new parties and claims on the eve of a discovery cut-off on March 1 discovery clean, unfairly burdening the defendants and prolonging the litigation. Even the 2 || proposed new theories for Section 1983 liability based on the original excessive force allegations 3 would require discovery of a different scope and different kind. 4 For the handful of even arguably related claims, amendment also would be futile. Section 5 1983 may not be used to collaterally attack a conviction that has not been reversed, vacated, 6 || expunged, or otherwise called into question by post-conviction proceedings. See Heck v. 7 || Humphrey,

(1994); Stanley v. Kidd, No. 23-cv-00798-JD,

, at 8 *2 (N.D. Cal. Aug. 14, 2023). The record indicates that Heck bars almost all the proposed new 9 || causes of action, which challenge the legality of Harrison’s arrest and the subsequent criminal 10 || proceedings. 11 IT IS SO ORDERED. e 12 Dated: March 7, 2024

14 JAMES ATO 5 United fftates District Judge 16

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