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Michael S. Mccormack v. City and County of Honolulu

December 30, 2011

MICHAEL S. MCCORMACK,
PLAINTIFF,
v.
CITY AND COUNTY OF HONOLULU, ANDY LAZANO, MR. PACHECO,
JOHN DOES 1-10,
DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER (1) GRANTING DEFENDANTS CYREL LOZANO AND PRESTON PACHECO'S MOTION TO DISMISS AND (2) AFFIRMING MAGISTRATE JUDGE CHANG'S ORDER DENYING MCCORMACK AN ENLARGEMENT OF TIME TO FILE A MOTION TO AMEND COMPLAINT

I. INTRODUCTION.

On May 18, 2010, Plaintiff Michael S. McCormack filed this action against the City and County of Honolulu ("City") and two Honolulu Police Department police officers. McCormack alleges that the two police officers used excessive force against him in violation of his constitutional rights and state law. McCormack's Complaint names the officers as "Andy Lazano" and "Mr. Pacheco," but the officers McCormack intended to sue are Cyrel Lozano ("Lozano") and Preston Pacheco ("Pacheco"). McCormack has still not served either Lozano or Pacheco. Lozano and Pacheco now move to dismiss the Complaint for insufficient service of process, and for failure to prosecute and comply with the Federal Rules of Civil Procedure. The court grants the motion and dismisses the Complaint against Lozano and Pacheco without prejudice. The court also here affirms Magistrate Judge Kevin Chang's order denying McCormack's request for additional time to file a motion to amend the Complaint.

II. BACKGROUND.

A. Factual Background.

According to the Complaint, on May 18, 2008, McCormack boarded a public bus in Kapolei. See Compl. ¶ 9, ECF No. 1. McCormack is epileptic; he wears a cast on his lower leg and ankle and uses a cane for support. See id. ¶ 11. On the day of the incident, McCormack showed his disability pass to the bus driver and boarded the bus. See id. ¶ 9. McCormack alleges that, while sitting inside the bus, he noticed a woman outside talking to police officers and gesturing toward the bus. See id. ¶ 10. The police were allegedly investigating a purse-snatching. See Def. Mot. Partial Dismissal ¶ 14, ECF No. 11. While the Complaint is unclear, it appears McCormack is alleging that the woman described the culprit as having worn a black leather jacket. See Compl. ¶ 12. Three police officers, including Lozano and Pacheco, allegedly boarded the bus and approached McCormack. McCormack says he was one of at least three men on the bus wearing a black leather jacket. See id. ¶¶ 4, 12. Lozano allegedly grabbed McCormack and told him he was under arrest. See id. ¶ 12. McCormack alleges that Lozano "yank[ed] Plaintiff out of the seat and twist[ed] him around and put handcuffs on [him]." See id. McCormack allegedly suffered a seizure as a result of the officers' physical abuse and threat of arrest. See id. ¶ 13.

McCormack alleges that the police officers who approached him failed to question him first. See id. ¶ 14. They also allegedly failed to inform him what he was suspected of having done and used excessive force against him. See id. McCormack claims that Lozano and Pacheco lacked probable cause to arrest him but used their status as police officers to threaten, assault, and intimidate him. See id. ¶¶ 15, 16. After McCormack went into an epileptic seizure, Lozano and Pacheco allegedly realized that they had falsely accused McCormack and did not arrest him. See id. ¶ 17. McCormack claims that his health was jeopardized by the officers' rough treatment and false accusation of theft. See id.

B. Procedural Background.

McCormack filed the Complaint incorrectly naming Andy Lazano and incompletely naming Mr. Pacheco on May, 18, 2010. ECF No. 1. McCormack did not serve Lozano and Pacheco within 120 days as required by Rule 4(m) of the Federal Rules of Civil Procedure. The lack of service was discussed, even before the 120 days had passed, at a scheduling conference before Magistrate Judge Chang on August 23, 2010. ECF No. 9. On September 22, 2010, McCormack moved for an additional sixty days to serve Lozano and Pacheco. Pl. McCormack's Ex Parte Mot. for an Enlargement of Time to Serve Defs. Andy Lazano and Officer Pacheco, ECF No. 13. McCormack requested the additional time to conduct discovery and obtain photographs of Lozano and Pacheco. Id. at 1. Magistrate Judge Chang granted the motion, finding good cause for the failure to timely serve them. ECF. No. 16. McCormack did not serve Lozano and Pacheco within the allotted sixty days.

A Rule 16 scheduling conference was held on September 27, 2010. ECF No. 18. Magistrate Judge Chang issued the Scheduling Order the same day, setting forth various deadlines, including a deadline of April 15, 2011, for motions to amend the pleadings, and a deadline of June 15, 2011, for dispositive motions. Rule 16 Scheduling Order ("Scheduling Order"), Sept. 27, 2010, ECF No. 18.

On January 25, 2011, this court partially dismissed the Complaint against the City. See Order Partially Granting and Partially Denying Def. City and County's Mot. to Dismiss, Jan. 25, 2011, ECF No. 31 ("Dismissal Order"). In that order, the court gave McCormack until February 15, 2011, to file an amended complaint. Id. at 16. McCormack did not file an amended complaint by that date.

Two months later, on April 14, 2011, McCormack moved to amend the Complaint to "more definitively specif[y] the names of the Defendants and conform[] the pleadings to the Court's prior order." Mot. to Amend Compl. 1, ECF No. 43. Magistrate Judge Chang denied the motion. Order Denying Pls. Mot. to Amend Compl., May 20, 2011, ECF No. 53. Although Magistrate Judge Chang recognized that courts are to give leave freely when justice requires, he determined that the proposed amended complaint failed to comply with this court's Dismissal Order because most of the allegations were "identical" to those identified as deficient in the original Complaint. Id. at 2, 5. However, Magistrate Judge Chang gave McCormack "one more opportunity to file a motion to amend" the Complaint. Id. at 9. McCormack was instructed to file a motion to amend by June 3, 2011, and told that any motion to amend filed after that date would be subject to the "good cause" requirement under Rule 16(b) of the Federal Rules of Civil Procedure.*fn1 Id. at 9. McCormack did not file a motion to amend by the new deadline.

The City moved for summary judgment, and the court granted partial summary judgment on July 26, 2011. Order Granting in Part, Denying in Part Defendant City and County's Mot. for Summary Judgment, July 26, 2011, ECF No. 83.

On August 24, 2011, Lozano and Pacheco brought the present motion to dismiss.*fn2 On September 2, 2011, McCormack again moved to amend the Complaint to correctly name the Defendants and to comply with this court's Dismissal Order. Mot. for Second Amended Compl. to Amend Named Defs., ECF No. 94. On September 8, 2011, McCormack moved for an extension of the deadline for motions to amend the pleadings, as set by the Rule 16 Scheduling Order, to allow the court to consider that motion. Mot. to Allow an Enlargement of Time for Complainant to File a Mot. to Amend Compl., ECF No. 99. Magistrate Judge Chang denied the motion on November 23, 2011, finding no good cause to amend the Rule 16 Scheduling Order because the court could not say that McCormack had "exercised due diligence in ascertaining the correct names of the police officers involved in the incident" and as McCormack had not "taken appropriate steps in complying with Court orders in this case regarding naming and serving the ...


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