                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JEREMY ATWELL, an individual,                    No. 10-16038

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01924-DGC

  v.
                                                 MEMORANDUM *
CITY OF SURPRISE, a political
subdivision of the State of Arizona,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                             Submitted June 16, 2011 **
                              San Francisco, California

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Janis L. Sammartino, United States District Judge for
the Southern District of California, sitting by designation.
      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


                                          2
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.




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