Percy v. San Francisco General Hosp.
| Decision Date | 10 March 1988 |
| Docket Number | No. 87-1849,87-1849 |
| Citation | 841 F.2d 975 |
| Parties | 46 Fair Empl.Prac.Cas. 566, 46 Empl. Prac. Dec. P 37,878, 10 Fed.R.Serv.3d 535 James Lee PERCY, Plaintiff-Appellant, v. SAN FRANCISCO GENERAL HOSPITAL; City and County of San Francisco, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark Herrmann, Steinhart & Falconer, San Francisco, Cal., for plaintiff-appellant.
Gerard J. Donnellan, Deputy City Atty., San Francisco, Cal., for defendants-appellees.
Appeal from the United States District Court for the Northern District of California.
Before ANDERSON, NOONAN, Jr. and THOMPSON, Circuit Judges.
James Lee Percy appeals from the district court's dismissal of his claim under 42 U.S.C. Sec. 1983 against San Francisco General Hospital and the City and County of San Francisco (collectively referred to as "City"). Percy stated his section 1983 claim in a first amended complaint filed after the statute of limitations had run. The district court determined that the 1983 claim did not "relate back" to the date Percy filed his original complaint. The original complaint set forth only one claim based upon Percy's alleged wrongful termination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court concluded that under Federal Rule of Civil Procedure 15(c) the section 1983 claim did not arise from the same "conduct, transaction or occurrence" that formed the basis of Percy's Title VII claim, and dismissed the 1983 claim as time barred.
We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.
The San Francisco General Hospital, which is operated by the City and County of San Francisco, employed James Lee Percy as an institutional police officer. Percy was fired in May 1983 after his supervisor received complaints that Percy had sexually harassed a female worker. Under the City's civil service regulations, Percy's position at the Hospital was designated a limited tenure appointment. Section 8.331 of the San Francisco Charter provides that "[l]imited tenure appointments may be terminated by the appointing officer for good cause at any time with the approval of the Civil Service Commission." The Civil Service Commission held a hearing and concurred in Percy's termination.
Percy contested his termination by filing a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that his termination was racially motivated. Percy also charged that he was fired in retaliation for having filed two earlier complaints with the EEOC in which he had alleged racially discriminatory employment practices by the Hospital. The EEOC issued Percy a right-to-sue letter on May 31, 1984. It concluded that Percy's discharge was racially motivated and in retaliation for his earlier complaints to the EEOC.
Percy then filed a pro se complaint against the City alleging that his termination was racially motivated in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The district court granted summary judgment in favor of the City. It concluded that there was no disputed issue of material fact and that Percy had failed to establish a prima facie case of racial discrimination. In an unpublished memorandum decision, this court reversed the judgment of the district court. We found that despite an order of the district court requiring the appointment of counsel under 42 U.S.C. Sec. 2000e-5(f)(1) to assist Percy in presenting his case, Percy never had the benefit of legal counsel. We concluded that, in opposition to the City's motion for summary judgment, appointed counsel would have submitted affidavits considered by the EEOC, which, along with the EEOC determination, would have been sufficient to create a triable issue of material fact. Consequently, we remanded the case to the district court with instructions that counsel be appointed. We also instructed the appointed counsel to investigate Percy's claims against the City and determine whether Percy's complaint should be amended to allege retaliatory discharge.
Percy's appointed counsel filed a first amended complaint against the City alleging racial discrimination and retaliatory discharge in violation of Title VII. The first amended complaint also stated a claim under 42 U.S.C. Sec. 1983. In the section 1983 claim Percy alleged that he had been denied due process in his Civil Service Commission hearing.
In dismissing Percy's 1983 claim, the district court refused to apply the relation back doctrine of Rule 15(c). It reasoned that the 1983 claim was predicated upon events that occurred at the Civil Service Commission hearing, whereas the Title VII claims were based on independent circumstances concerning Percy's discharge. The Title VII claims were then tried to the court. The trial resulted in a judgment in favor of the City. Percy appeals only the district court's order dismissing his 1983 claim.
Percy's appeal presents a standard of review question of first impression in this circuit. We must decide what standard to apply in reviewing a district court's decision not to apply the relation back doctrine of Federal Rule of Civil Procedure 15(c) to save from dismissal an otherwise time barred claim.
In a somewhat similar situation, when a plaintiff seeks to amend a complaint to add a new defendant or to substitute a defendant for one named in the original pleading, we review for abuse of discretion a district court's decision whether to allow the amendment. See Kilkenny v. Arco Marine Inc., 800 F.2d 853, 856 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1575, 94 L.Ed.2d 766 (1987); Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1399 (9th Cir.1984). But in the case now before us, the plaintiff Percy seeks only to add a new claim against the same defendant named in the original pleading. We think this difference is significant, and that our review in a case such as the present one is de novo.
Federal Rule of Civil Procedure 15(c) provides in pertinent part:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The second sentence of Rule 15(c) controls relation back of an amendment that seeks to add a new party. In this context, the rule requires the district court to determine whether the party sought to be added has received sufficient notice of the claim to have been given "ample opportunity to pursue and preserve the facts relevant to various avenues of defense." Korn v. Royal Caribbean Cruise Line, 724 F.2d at 1400. When the plaintiff seeks to add a new defendant, "[a]voiding prejudice to the party to be added [is] our major objective." Id. Thus, the district court is called upon to exercise its discretion in deciding whether the circumstances of a given case are such that it would be unfair to permit the plaintiff to add a new defendant.
When a plaintiff seeks to amend a complaint to state a new claim against an original defendant, however, the district court does not exercise discretion in the way it does when a new defendant is sought to be added. Instead, the court compares the original complaint with the amended complaint and decides whether the claim to be added will likely be proved by the "same kind of evidence" offered in support of the original pleading. Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 362 (9th Cir.1966). In making this decision, the court considers whether the "allegations of a new theory in an amended complaint ... involve[ ] the same transaction, occurrence, or core of operative facts involved in the original claim." Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259 n. 29 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).
In determining whether the relation back doctrine of Rule 15(c) should be applied when an amendment seeks to add a claim against an existing party, we are in as good a position as the district court to decide whether the "conduct, transaction, or occurrence" test of the Rule has been met. Consequently, we review this question de novo.
Although not previously articulated as such, it appears this standard has been used in other cases in which this issue has been present, but not expressly raised by the parties. See, e.g., Tiller v. Atlantic Coast Line R.R., 323 U.S. 574, 581, 65 S.Ct. 421, 424, 89 L.Ed. 465 (1945) (); Santana v. Holiday Inns, Inc., 686 F.2d 736, 739 (9th Cir.1982) (). 1
Percy complains that the district court erred in concluding that his section 1983 claim alleged in his first amended complaint arose out of a set of facts distinct from...
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