Opinion
CV-21-0685-PHX-DJH (DMF)
12-30-2021
Jack Charles Conroy, Plaintiff, v. Centurion, et al., Defendants.
REPORT AND RECOMMENDATION
DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion to Amend First Amended Complaint (Doc. 63) and lodged Proposed Second Amended Complaint (Doc. 64). Defendants have responded (Docs. 82, 90). Plaintiff has replied (Doc. 95).
Plaintiff also filed a motion to clarify his motion to amend (Doc. 96), which the Court has denied (Doc. 107).
I. BACKGROUND
Plaintiff filed his Complaint (Doc. 1) in April 2021. On April 29, 2021, the Court issued its Screening and Service Order (Doc. 6). The Court ordered that Defendants Centurion, Shinn (in his official capacity), Weigel, Thomas, Powell, Diaz, Fox, Minev, Randall, Castorena, Williams, and Thielman must answer the Eighth Amendment medical claims regarding treatment for the hepatitis C virus (“HCV”) (Doc. 6 at 3-7, 8-9, 11). The Court also ordered Plaintiff's retaliation, Americans with Disabilities Act, and Rehabilitation Act claims dismissed without prejudice (Id. at 7-8, 11). About the retaliation claim, the Court explained that although Plaintiff alleged retaliation “against him for filing grievances and his previous lawsuit, he does not allege sufficient facts to show his grievances or previous lawsuits were the motivating factor” for the actions of which Plaintiff complained, which were alleged threats to discontinue his HCV treatment (Id. at 4-6, 7).
Plaintiff signed a motion to amend the Complaint (Doc. 8) and the lodged proposed First Amended Complaint (Doc. 9) on April 26 and 25, 2021, before the Court's Screening and Service Order (Doc. 6), but the motion and proposed amended complaint did not reach the Clerk's Office for filing until after the Court's Screening and Service Order (Doc. 6). Plaintiff's motion to amend stated that Plaintiff “discovered some deficiencies in [his] Complaint and need for clarification” (Doc. 8). Because there were no significant substantive changes between the Complaint and proposed First Amended Complaint, the proposed changes were mostly stylistic, and did “not affect the Court's Screening and Service Order (Doc. 6)” regarding the Complaint, the Court allowed the First Amended Complaint to proceed on the same claim and defendants as the previous Court's Screening and Service Order (Doc. 11; see Doc. 6).
After service and answers, the Court issued an August 6, 2021, Scheduling and Discovery Order (Doc. 43) in which the Court ordered:
All motions to amend the complaint or to add parties shall be filed promptly and no later than(Id. at 2) (italics added). As reflected by the numerous notices of service on the Court's docket, discovery has been proceeding. The deadline for discovery requests is January 3, 2022 (Doc. 43 at 2).October 4, 2021
. Discovery and other litigation matters shall proceed on the operating complaint pending decision by the Court as to whether leave to amend or to add parties will be granted.
II. PLAINTIFF'S PENDING MOTION TO AMEND
In the pending motion to amend the First Amended Complaint signed by Plaintiff on October 4, 2021, Plaintiff does not seek to amend Count I of his First Amended Complaint (see Docs. 63, 64, 95). Pursuant to Fed.R.Civ.P. 15(a) and 15(d), Plaintiff seeks in his proposed Second Amended Complaint to add a Count II for completely different retaliation claims than the retaliation claims dismissed by the Court relating to purported threats to discontinue Plaintiff's HCV treatment. Plaintiff sums up the basis of his proposed new Count II of his proposed Second Amended Complaint in his reply that several potential “ADC defendants spread rumors with the ‘heads' of two prominent prison gangs, (among others), at South Unit that: ‘[Plaintiff] is a Snitch.'” (Doc. 95 at 1-2).
The only overlap in defendants who were originally named in the Complaint and First Amended Complaint that are now named in Count II in the proposed Second Amended Complaint is Defendant Castorena. There are five additional defendants in Count II of the proposed Second Amended Complaint who were not named in the Complaint or First Amended Complaint (see Docs. 1 at 2, 12 at 2, 64 at 2). Not even the claim against Defendant Castorena in Count II of the proposed Second Amended Complaint relates to Plaintiff's HCV treatment. Rather, Plaintiff claims that Defendant Castorena retaliated against him for filing this lawsuit and that Defendant Castorena retaliated against Plaintiff by “spreading rumors” that Plaintiff is a “snitch” (Doc. 64 at 25). Plaintiff connects these events based on the timing of the lawsuit's filing: “I filed this lawsuit on 4-20-21, and just a few days later (on 4-23, 4-24, 4-25-21) I was told by several inmates that Castorena, Martinez, and Property Officer Knabel told the head Assatru and head Pisano prison gangs that I sent Castorena an I/M letter accusing them of stealing from my legal boxes, and I'm a snitch, and its [sic] because of me that inmates are no longer allowed in the property room” (Id.). Yet, Defendant Castorena was not served with the operative complaint in this matter until June 25, 2021 (Doc. 24). Plaintiff's conclusory allegation about the connection to this lawsuit is not supported, and his other allegations about Defendant Castorena's motives for retaliation are unrelated to this lawsuit: “On 4-14-21 I submitted an I/M letter to COIV Castorena . . . concerning a number of issues/policy violations incl.: my recent movement into a dorm ruled by majority black gang-banger inmates, which was extremely loud disrespectful, and violent” (Id. at 24). Plaintiff states that around the same time period he had also “advised COIV Castorena of my legal doc's/books missing from my legal box storage, and inmates unsupervised access to legal box reviews in the property room” (Id. at 25).
The medical defendants (Centurion of Arizona, LLC, Daphne Thomas, RN, Natalya Weigel, RN, Michelle Diaz, RN, Betrina Randall, RN, Marcella Fox, RN, Marianne Powell, NP, Michael Minev, MD, and David Shinn) “take no position” on Plaintiff's motion to amend because the “proposed amendments in Count II arise solely from claims of retaliation allegedly committed by correctional officers and, therefore, implicate issues of incarcerated life that these specific medical provider Defendants have no involvement in” (Doc. 82 at 1-2). Defendants Castorena, Shinn, Thielman and Williams (collectively, “State Defendants”) do not object to Plaintiff's proposed new Count II, and request “that the Court screen the claims in Count II” (Doc. 90 at 2).
The State Defendants have opposition to amendment of Count I, but Plaintiff does not seek such in his motion to amend and proposed Second Amended Complaint (Docs. 63, 64). Plaintiff's motion for clarification, which sought amendment of a previously dismissed portion of Count I, was denied. See footnote 1, supra.
Rule 15(a) of the Federal Rules of Civil Procedure provides that a plaintiff should be given leave to amend his complaint when justice so requires. Although the Court should freely give leave to amend when justice so requires, Fed.R.Civ.P. 15(a), the court may deny amendment where it would cause undue delay or prejudice to the opposing party, Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). Granting or denying leave to amend is a matter committed to the Court's discretion. Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). The Court's discretion is particularly broad where, as here, the plaintiff has previously been granted leave to amend and seeks to amend the complaint again to add new claims and new defendants. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003) (“The district court's discretion to deny leave to amend is particularly broad where the plaintiff has previously filed an amended complaint.”), overruled on other grounds by Odom v. Microsoft Corp., 486 F.3d 541, 551 (9th Cir. 2007). See also Chodos v. West Publishing Co., 292 F.3d 992, 1003 (9th Cir. 2002). In determining whether leave to amend should be given, the Court must consider “bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the plaintiff has previously amended the complaint.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) (citation omitted).
Plaintiff's October 4, 2021, motion to amend is untimely because Plaintiff did not move to amend promptly as ordered by the Court in the August 6, 2021, Scheduling and Discovery Order (Doc. 43 at 2). The Court did not set October 4, 2021, as the deadline for motions to amend generally, but as the cutoff for promptly filed motions to amend (Id.). Plaintiff's allegations in Count II of his proposed Second Amended Complaint against new proposed Defendant Martinez occurred in April 2021 (Doc. 64 at 23-24). The “numerous grievances” that Plaintiff recalls submitting against proposed new Defendant Martinez were from 2019 (Id. at 24). Plaintiff avers in his proposed Second Amended Complaint that Martinez “told several inmates that: ‘Conroy is testifying in court” and is a snitch “in close proximity in time to” his previous complaints and Plaintiff's “commandeering of Martinez's office for [Plaintiff's] personal use” in April 2021 (Id. at 23-25). Similarly, Plaintiff's allegations reflect that Plaintiff knew of his Second Amended Complaint Count II claim against Defendant Castorena in April 2021 (Id. at 25). The same is true regarding proposed Second Amended Complaint Count II Defendant Knabel (Id.). The proposed Second Amended Complaint alleges retaliation by proposed Defendant Moore also in April 2021 (Id. at 27). By Plaintiff's allegations, he was aware of the alleged retaliation by proposed Second Amended Complaint Count II Defendants Young and Williams in May 2021 (Id. at 29). Plaintiff did not comply with the Scheduling and Discovery Order in that he did not file his motion to amend and proposed Second Amended Complaint promptly.
The liberal standard for allowing amendment does not save Plaintiff's proposed new Count II from failing to arise from the same transaction or occurrence as the claims brought in the original Complaint and First Amended Complaint. See Fed.R.Civ.P. 20(a)(2) (a plaintiff may only join multiple defendants in one action if “any right to relief . . . aris[es] out of the same transaction, occurrence, or series of transactions and occurrences” and a “question of law or fact common to all defendants will arise in the action”); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in different suits.”); see also Givens v. California Dep't of Corr. & Rehab., No. 2:19-CV-0017 KJN P, 2020 WL 1324085, at *1 (E.D. Cal. Mar. 20, 2020) (“Plaintiff is advised that the provision of medical care, standing alone, is not the equivalent of ‘arising from the same transaction, occurrence, or series of transactions and occurrences.'). The proposed Second Amended Complaint's new Count II is not properly joined in this lawsuit, particularly at this stage. Federal Rule of Civil Procedure 20(a) provides that all persons may be joined in one action as defendants if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and if “any question of law or fact common to all defendants will arise in the action.”
Instead of developing one generalized test for ascertaining whether a particular factual situation constitutes a single transaction or occurrence for purposes of Rule 20, the courts seem to have adopted a case-by-case approach. As stated by one district court judge: “there can be no hard and fast rule, and that the approach must be a general one of whether there are enough ultimate factual concurrences that it would be fair to the parties to require them to defend jointly [the several claims] against them.”7 Wright, Miller & Kane, Federal Practice and Procedure § 1653 (3d ed. 2001) (citation omitted). Here, the proposed Second Amended Complaint goes far afield from the issues and parties already in this case, which regard Plaintiff's HCV treatment. Additional Count II of the proposed Second Amended Complaint deals with alleged retaliation for legal preparation of a completely separate case from this one (Doc. 64 at 23) and other matters unrelated to Plaintiff's HCV treatment (Id. at 23-33).
The Court recognizes that Fed.R.Civ.P. 20(a) is generally construed quite liberally for prisoner complaints at their outset, but this case is not at its inception and the proposed amendments do not pertain to matters claimed by Plaintiff in his original or First Amended Complaint.
At this stage of this case, allowing amendment of the operative complaint to add a completely new claim with five new defendants about completely separate events occurring during the pendency of this lawsuit would unduly delay the progress of this case. If the new additional claims in Count II of the proposed Second Amended Complaint were to start from screening to service to discovery, it would significantly delay the resolution of Plaintiff's medical claims in Count I in this lawsuit, which the parties have been litigating for some time and for which the discovery requests period is about to close. To the extent any of Plaintiff's claims in Count II of his proposed Second Amended Complaint state even a colorable claim for relief against any defendant, to allow the amendments at this late stage in this proceeding would further complicate the case and make this case overly complex and confusing.
If the Court were to allow amendment at this time to add new Count II, Plaintiff's claims in Count II of the proposed Second Amended Complaint would survive screening as to several of the proposed defendants, such as Defendant Castorena regarding alleged retaliation relating to the issues and policy violations not related to the filing of this lawsuit as well as relating to Defendants Martinez, Knabel, and Moore. As Judge Humetewa wrote in the Screening and Service Order about Plaintiff's dismissed retaliation claims relating to HCV treatment:
A viable claim of First Amendment retaliation contains five basic elements:
(1) an assertion that a state actor took some adverse action against an inmate
(2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights (or that the inmate suffered more than minimal harm) and (5) did not reasonably advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); see also Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claim requires an inmate to show (1) that the prison official acted in retaliation for the exercise of a constitutionally protected right, and (2) that the action “advanced no legitimate penological interest”). The plaintiff has the burden of demonstrating that his exercise of his First Amendment rights was a substantial or motivating factor behind the defendants' conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989).(Doc. 6 at 7). The claims against Defendants Williams and Young in Count II of the proposed Second Amended Complaint do not state even a colorable claim and should be dismissed without prejudice should the Court allow the motion to amend. Plaintiff has not made a sufficient claim of retaliation by alleging that Williams and Young were “in a position to approve” protective custody based on a report that Plaintiff's life was in danger and their not approving protective custody (Doc. 64 at 29).
In addition, the Court notes that Plaintiff amended his Complaint earlier in this matter with his filing of the First Amended Complaint. Importantly, Plaintiff will not be prejudiced by the denial of his motion to amend. Plaintiff can simply file his potential claims in Count II as another and separate lawsuit.
III. CONCLUSION
Plaintiff's motion to amend was not brought promptly and is therefore untimely pursuant to the Court's Scheduling and Discovery Order. The proposed entirely new claim does not have sufficient nexus to the matters in this lawsuit that survived screening and that the parties have been litigating. Plaintiff has been granted leave to amend previously. Plaintiff will not be prejudiced if his motion to amend is denied and he must file a separate lawsuit to pursue his new claims. If the motion to amend were to be granted, this matter would be substantially delayed and become much more complex procedurally and otherwise.
Therefore, it is recommended that Plaintiff's Motion to Amend First Amended Complaint (Doc. 63) and to file the lodged proposed Second Amended Complaint (Doc. 64) be denied. In the alternative, if the District Judge is not inclined to accept such recommendation, it is recommended that Plaintiff's claims in Count II of the proposed Second Amended Complaint proceed against Defendant Castorena regarding alleged retaliation relating to the issues and policy violations not related to the filing of this lawsuit as well as proceed against Defendants Martinez, Knabel, and Moore; the claims against Defendants Williams and Young in Count II of the proposed Second Amended Complaint do not state even a colorable claim of retaliation. See footnote 4, supra.
Accordingly, IT IS THEREFORE RECOMMENDED that Plaintiff's Motion to Amend First Amended Complaint (Doc. 63) and to file the lodged proposed Second Amended Complaint (Doc. 64) be denied.
IT IS FURTHER RECOMMENDED in the alternative, that Plaintiff's claims in Count II of the proposed Second Amended Complaint proceed against Defendant Castorena regarding alleged retaliation relating to the issues and policy violations not related to the filing of this lawsuit as well as proceed against Defendants Martinez, Knabel, and Moore; that the claims against Defendants Williams and Young in Count II of the proposed Second Amended Complaint be dismissed without prejudice for failure to state even a colorable claim of retaliation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.