Atwell v. City of Surprise

Full title: JEREMY ATWELL, an individual, Plaintiff-Appellant, v. CITY OF SURPRISE, a…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jun 28, 2011

440 F. App'x 585 (9th Cir. 2011)

Opinion

No. 10-16038.

Submitted June 16, 2011^__ San Francisco, California.

__ The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

June 28, 2011.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. 2:09-cv-01924-DGC.

Before: SCHROEDER and BEA, Circuit Judges, and SAMMARTINO, District Judge.^___

___ The Honorable Janis L. Sammartino, United States District Judge for the Southern District of California, sitting by designation.

MEMORANDUM^_

_ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Jeremy Atwell appeals the district court's Fed.R.Civ.P. 12(c) judgment on the pleadings in his action under the Americans with Disabilities Act (ADA) against the City of Surprise, which terminated him from his position as a police officer. We affirm.

The district court did not err in dismissing Atwell's First Amended Complaint. The First Amended Complaint sets out Title II of the ADA as the legal basis of Atwell's employment discrimination and retaliation claims. As Atwell has conceded, however, employment discrimination and retaliation claims are not cognizable under Title II of the ADA. Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) ("[W]hen viewed as a whole, the text, context and structure of the ADA show unambiguously that Congress did not intend for Title II to apply to employment.").

Additionally, the district court did not abuse its discretion in denying Atwell's request for leave to file a Second Amended Complaint. Atwell should have requested a modification of the district court's scheduling order before he requested leave to file a Second Amended Complaint. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992) (explaining that this court does not view a motion to amend the complaint as a motion to modify the scheduling order). Moreover, even if the court treated the motion to amend the complaint as a de facto motion to amend the scheduling order, the district court did not abuse its discretion in denying it because Atwell failed to show good cause. Id. at 609. Atwell's actions were careless, and this court has held that "carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. AFFIRMED.