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1 Plaintiff also sought to omit as party defendants the City

of Sacramento and the Sacramento Police Department. Pursuant to

this court’s last order, however, the City of Sacramento and the

Sacramento Police Department were dismissed as defendants. 

1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAFAR AFSHAR,

NO. CIV. S-04-1088 LKK/JFM

Plaintiff,

v.

O R D E R

CITY OF SACRAMENTO; SACRAMENTO

POLICE DEPARTMENT; COUNTY OF

SACRAMENTO; SACRAMENTO COUNTY

SHERIFF’S DEPARTMENT; and SHERIFF

LOU BLANAS, individually and in his

official capacity as Sheriff of the

Sacramento County Sheriff’s Department,

Defendants.

 /

Pending before the court is plaintiff’s motion to amend the

scheduling order and complaint. Plaintiff seeks to amend the

complaint by substituting a named defendant, Deputy Sheriff Brett

Spaid, for a “DOE” defendant listed in the original complaint.1

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2

As I explain below, plaintiff’s motion to amend must be denied. 

I. 

BACKGROUND

A. ALLEGATIONS CONTAINED IN COMPLAINT

On June 7, 2003 plaintiff was arrested and booked in the

Sacramento County Main Jail for public intoxication. While being

booked, deputies and/or police officers allegedly threw plaintiff

against a wall. Plaintiff avers that he suffered a severe cut to

his head, and that he bled profusely and lost consciousness.

Plaintiff received some medical care from jail personnel and was

released the next day. The complaint states that upon being

released, plaintiff went to the Veteran’s Administration Hospital

where tests confirmed that he suffered from a concussion. 

B. PROCEDURAL HISTORY 

Plaintiff filed his first complaint on June 7, 2004. The

complaint named as defendants the City of Sacramento, the

Sacramento Police Department, the County of Sacramento, the

Sacramento County Sheriff’s Department, Sheriff Lou Blanas, and

DOES I through XXX. The complaint asserted nine claims of relief:

(1) violation of equal protection; (2) violation of substantive due

process; (3) false arrest/excessive force pursuant to section 1983;

(4) entity/supervisory liability; (5) negligent hiring, training,

supervision and retention; (6) negligence; (7) assault, battery and

conspiracy; (8) negligent infliction of emotional distress; and (9)

intentional infliction of emotional distress. 

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3

Over the summer of 2005, the parties engaged in discovery.

On September 26, 2005, defendants filed a motion for summary

judgment. Plaintiff failed to file an opposition, and the court

issued an order to show cause. On October 24, 2005, plaintiff

filed the pending motion to amend as well as an opposition to

defendant’s motion for summary judgement and a cross-motion for

summary judgment. The proposed amended complaint raises three

claims: (1) an excessive force claim against Deputy Spaid; (2)

Monell liability under 1983 against the Sacramento County Sheriff’s

Department; (3) negligence claim against the County. 

III.

RULE 16(b) STANDARDS

Because the court has filed a pretrial scheduling order

Federal Rule of Civil Procedure 16 governs the procedure for

amending the pleadings. Unlike Rule 15(a)'s liberal amendment

policy which focuses on the bad faith of the party seeking to

interpose an amendment and the prejudice to the opposing party,

Rule 16(b)'s "good cause" standard primarily considers the

diligence of the party seeking the amendment. Johnson v. Mammoth

Recreations, Inc., 975 F.3d 604 (9th Cir. 1992); see 6A Wright,

Miller & Kane, Federal Practice and Procedure § 1522.1 at 231 (2d

ed. 1990) ("good cause" means scheduling deadlines cannot be met

despite party's diligence). 

Moreover, carelessness is not compatible with a finding of

diligence and offers no reason for a grant of relief. Cf. Engleson

v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir.

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4

1992) (carelessness not a ground for relief under Rule 60(b));

Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th

Cir. 1971) (same), cert. denied, 405 U.S. 974 (1972). Although the

existence or degree of prejudice to the party opposing the

modification might supply additional reasons to deny a motion, the

focus of the inquiry is upon the moving party's reasons for seeking

modification. See Gestetner Corp. v. Case Equip. Co., 108 F.R.D.

138, 141 (D.Me. 1985). If the moving party was not diligent, the

inquiry should end.

IV.

ANALYSIS

A. DILIGENCE

It is evident that plaintiff knew Deputy Spaid’s name as early

as May of 2005. As defendants point out, in May of 2005,

plaintiff’s counsel sent defendants a letter stating that he

planned to amend the complaint to add Deputy Spaid as a defendant,

along with several other officers. See Def.’s Opp’n to Mot. to

Amend, Decl. of Robert Chalfant, Ex. D. Plaintiff’s counsel did

not file the motion to amend until late October of 2005, almost

five months after he sent the letter. The evidence tendered

demonstrates that plaintiff was not diligent. 

Moreover, even if the court were to accept plaintiff’s

contention that plaintiff did not know of Spaid’s identity and

level of involvement until the end of July 2005, there was no

reason why plaintiff could not have filed the motion to amend soon

thereafter. Instead, plaintiff’s counsel waited to file the motion

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2 Other district courts have specifically stated that

amending the complaint to substitute real named defendants for

“doe” defendants must be done as soon their identity is known, or

reasonably should have been known or, in any event, before close

5

to amend until after defendants filed their motion for summary

judgment and after plaintiff had been sanctioned for failing to

oppose the defendants’ motion for summary judgement. 

Plaintiff argues that using the “doe” designation in an

original complaint allows a party to later amend the complaint to

name real defendants. See Pl.’s Repl. to Def.’s Opp’n at 1:28. The

court notes that plaintiff’s strategy of naming “doe” defendants

in the original complaint was not improper. It is well-established

that plaintiffs may use the “doe” designation when they do not know

the names of certain defendants. See Gillespie v. Civiletti, 629

F.2d 637 9th Cir. (9th Cir. 1980) (where identity of alleged

defendants is not known prior to filing of complaint plaintiff

should be given an opportunity through discovery to identify the

unknown defendant, district court erred when it dismissed the

complaint before discovery commenced). 

That said, amending the complaint to substitute the real names

must be done within a reasonable time. In the context of amending

a complaint to add a new claim, the Ninth Circuit has held that a

trial court did not abuse its discretion in denying plaintiff's

motion to amend after discovery was virtually complete and

defendant’s motion for summary judgment was pending before the

court. Roberts v. Arizona Bd. of Regents, 661 F.2d 796 (9th Cir.

1981).2 In the instant case, plaintiff’s counsel knew of Deputy

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of discovery. See Rodriguez v. City of Passaic, 730 F.Supp. 1314

(D.N.J. 1990); Collett v. Socialist Peoples' Libyan Arab

Jamahiriya, 362 F.Supp.2d 230 (D.D.C. 2005).

6

Spaid’s identity as early at May of 2005, and yet, the motion to

amend was not filed until October of the same year. For these

reasons, the court finds that plaintiff was not diligent. 

B. PREJUDICE 

The existence or degree of prejudice to the defendant may

supply additional reasons to deny a motion to amend under Rule 16.

Johnson, 975 F.2d at 609. 

In the case at bar, discovery is closed and defendants have

already filed a motion for summary judgement. Should the court

grant the motion to amend, discovery would need to be reopened and

defendants would need to re-file their motion for summary

judgment. The court finds good reason to believe that defendants

would be prejudiced if discovery were reopened at this stage of the

litigation. 

Accordingly, the court hereby ORDERS as follows:

1. Plaintiff’s motion to amend is DENIED.

2. Defendants’ motion for summary judgment, as well as

plaintiff’s cross-motion for summary judgment, are scheduled to be

heard on February 27, 2006, on the court’s Law and Motion Calendar

at 10:00 a.m. in Courtroom No. 4. Defendant’s opposition to

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plaintiff’s cross-motion shall be filed not later than February 6,

2006. 

IT IS SO ORDERED. 

DATED: December 16, 2005.

 /s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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