Summary
considering that the statement was made to a professional conference or a scientific journal
Summary of this case from Kurin, Inc. v. Magnolia Med. Techs.Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); Circuit Rule 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the District of the Northern Mariana Islands. Alex R. Munson, District Judge, Presiding.
Before BROWNING, BRUNETTI, and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Robert A. Bisom appeals the judgment on the pleadings in his action under 42 U.S.C. §§ 1983 and 1981. We affirm.
Although Bisom agrees that the third claim for relief and his claims against Bradshaw and Tan in their official capacity asserted in counts 1 and 2 were properly dismissed, he argues that the district court erred in dismissing the first and second claims because he adequately alleged that each acted in his individual capacity. Bisom contends that the court incorrectly relied on Pennhurst State School & Hosp. v. Haldeman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), and failed to construe the complaint in its entirety favorably to the plaintiff, as it is supposed to do. Further, Bisom submits, the court erred by not allowing him leave to amend.
While we agree with Bisom that reliance on Pennhurst was misplaced because it has to do with when a state officer acts ultra vires--not whether he is acting in his official capacity for purposes of § 1983, we disagree that judgment on the pleadings was not appropriately entered. A Rule 12(c) motion is properly granted if, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law. Here, paragraph 16 of the complaint plainly avers that in doing the acts alleged, Bradshaw and Tan "were acting in their official capacity ... in the course and scope of their employment and as agents of defendant, CNMI." Taking this allegation as true, dismissal is required as a § 1983 action cannot proceed against the state or its officials in their official capacity. Nor may paragraph 16 reasonably be read as merely alleging that Bradshaw and Tan acted under color of law, as Bisom suggests, for that is alleged in paragraph 19.
Bisom argues that the caption saves his complaint since it says that Bradshaw and Tan are sued "in [their] official and individual capacities," but that isn't determinative. Unlike Shoshone-Bannock Tribes v. Fish & Game Comm., 42 F.3d 1278 (9th Cir.1994), and Price v. Akaka, 928 F.2d 824 (9th Cir.1990), Bisom's complaint is not silent but clearly states that Bradshaw and Tan acted against him in their official capacities. And unlike Price, the caption creates no confusion by noting that each is sued in his individual as well as official capacity, because the complaint has state law claims which can only be asserted against Bradshaw and Tan individually. Thus, there is no basis upon which to presume that Bisom's 1983 action proceeded against these defendants individually based solely on the caption. Accordingly, the district court correctly dismissed the federal claims.
We do not need to consider whether leave to amend would have been appropriate in the absence of the Scheduling Order, because the Scheduling Order controls. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir.1992). Bisom made only an oral request for leave to amend, which came too late. By the terms of Rule 16(b), a Scheduling Order may only be modified with leave of court for good cause shown. Bisom made no request to modify the Scheduling Order and offered no cause for doing so.
AFFIRMED.