Opinion
CV 20-00404 PHX SMB (CDB)
05-27-2022
Jeffrey J. Doering, Plaintiff, v. Mark Lamb, et al., Defendant.
HONORABLE SUSAN M. BRNOVICH JUDGE
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED STATES MAGISTRATE JUDGE
Plaintiff is currently represented by counsel in this prisoner civil rights matter. Before the Court is Plaintiff's motion at ECF No. 152, which as relevant hereto seeks leave to amend the operative complaint.
I. Background
Plaintiff, then proceeding pro se, filed his § 1983 complaint on February 24, 2020. The Court's service order, issued April 15, 2020, construed the complaint as follows:
Plaintiff's claims arise from a common core of operative facts, as follows: On or about April 24, 2018, Plaintiff was throwing up in his cell and bleeding from the rectum. Plaintiff exited his cell and collapsed near the “bubble” while “crying out” in pain in front of the unknown nurse. At that point, Damico, the unknown Captain, and the three unknown PCSO deputies approached and told Plaintiff to “stop resisting.” Plaintiff alleges that he was not resisting, but what only holding his abdomen in pain. Nevertheless, Damico and the unknown PCSO deputies began to punch and kick Plaintiff, ultimately knocking him unconscious; the unknown Captain also threatened to taze Plaintiff. After the beating, Plaintiff required emergency surgery, and was placed in a medically induced coma for approximately two weeks while recovering from his injuries.(ECF No. 5 at 3) (emphasis added).
In the Complaint Plaintiff alleged six counts of excessive force (Counts One through Six), and one count related to medical care (Count Seven). In the Order at ECF No. 5 the Court dismissed Counts One (against Lamb), Three (against the unknown PCSO Captain), and Seven (against the unknown nurse) without prejudice, and dismissed Defendants Lamb, the unknown PCSO Captain, and the unknown nurse without prejudice. The Court ordered Defendant D'Amico to answer Count Two, and allowed Plaintiff until August 13, 2020, to discover by subpoena or otherwise the identities of the three unknown PCSO deputies (named in Counts Four, Five, and Six) and to file a “notice of substitution” providing those Defendants' actual names. The Court later allowed Plaintiff until October 12, 2020, to file the required notice of substitution.
In an order entered May 22, 2020, the Court ordered Sheriff Lamb to use reasonable efforts to identify the three unknown Sheriff's Office Employees named in the Complaint, and to disclose addresses where those employees could be served. (ECF No. 14). The Order at ECF No. 14 required Sheriff Lamb to
... use reasonable efforts to identify by their full name the three unknown Sheriff's Office Employees who were working at the Pinal County Jail in the section of the jail where Plaintiff was detained, and who were supervised by Defendant Damico, on April 24, 2018. After doing so Sheriff Lamb shall file notice with the Court of the identities of the unknown individuals
On June 26, 2020, Sheriff Lamb filed a notice with the Court, asserting compliance with the order at ECF No. 14, identifying the potential defendants as Aguirre, Lockhart, and Gallo, and disclosing addresses where those individuals could be served. (ECF Nos. 18 & 19). The notice states:
As an initial matter, Pinal County Jail has no record of an April 24, 2018 incident involving Defendant D'Amico or Plaintiff. On April 25, 2018, however, Defendant D'Amico responded to a medical incident involving Plaintiff. Assuming this is the incident Plaintiff refers to in his Complaint (Dkt. 1), the following officers were present: Officer M. Aguirre, Officer L. Lockhart; and Officer R. Gallo.(ECF No. 18 at 1).
On August 7, 2020, prior to any Defendant answering the Complaint, Plaintiff filed a motion for leave to amend his complaint and lodged a proposed amended complaint. (ECF Nos. 23 & 24). In the proposed amended complaint Plaintiff asserted he was subjected to a “senseless vicious beating” “on approximately 4/25/18.” (ECF No. 24 at 5). Plaintiff alleged the Unknown Captain “personally responded and participated or encouraged or supported the unprovoked and senseless attack on [Plaintiff] on approximately 4/25/18.” (ECF No. 24 at 7). Plaintiff alleged that D'Amico participated in the beating “just minutes” after Plaintiff “went down in his cell and was throwing up repeatively [sic] and bleeding out the rectum,” while in a cell with “10-Men.” (ECF No. 24 at 9). Plaintiff alleged D'Amico conducted the beating after Plaintiff was in the “Bubble,” talking to a nurse. (ECF No. 24 at 10). Plaintiff alleged that upon waking up from the beating he was in a restraint chair, and he was then “quickly removed to a different area,” and “then thrown into an empty cell [and] placed on (Suicide Watch).” (Id.). Plaintiff alleges that at “2:00 AM the very next day in (Cell G-303)” a passing deputy noticed him bleeding and vomiting, and he was then transported to the emergency room. (ECF No. 24 at 10-11).
The motion to amend was granted October 8, 2020, and Plaintiff was given leave to proceed on the First Amended Complaint (ECF No. 30) substituting Aguirre, Lockhart, and Gallo for the previously “unknown” Sheriff's Deputies. (ECF No. 29). Plaintiff was also given an extension of the time allowed to identify the Defendant “Unknown Captain” and “Unknown Nurse,” and given leave to proceed on a claim against Sheriff Lamb. (Id.).
The First Amended Complaint was answered on October 22, 2020, and a scheduling order was issued October 23, 2020. (ECF Nos. 32 & 34). Pursuant to the scheduling order, any further motion to join parties or amend the pleadings was due December 7, 2020.
On January 5, 2021, Plaintiff was given leave to substitute “Nurse Dowd” for the defendant “Unknown Nurse.” (ECF No. 56). Nurse Dowd was eventually served and answered the First Amended Complaint. Additionally, the parties engaged in discovery and Defendants noticed Plaintiff's deposition. The Court extended the deadline for completing discovery to May 21, 2021. (ECF No. 81). On March 9, 2021, the Court granted in part and denied in part Plaintiff's motion to compel. (ECF No. 88).
Plaintiff obtained counsel on March 25, 2021. (ECF No. 93). On April 13, 2021, Plaintiff was ordered to show cause why the Defendant Sheriff Deputy Unknown Captain “Supervisor” and Plaintiff's claims against this defendant should not be dismissed for the failure to identify this defendant within the time allowed by the Court. (ECF No. 99). The parties stipulated to vacate the scheduling deadlines, and the Court ordered as follows: (1) Plaintiff was allowed until May 19, 2021, to file any supplemental responses to already-served requests for discovery regarding the issue of whether Plaintiff fully exhausted his administrative remedies regarding his remaining claims for relief prior to filing his original complaint, and to propound any requests for discovery on Defendants regarding the issue of exhaustion; (2) Defendants were allowed until May 24, 2021, to propound any additional requests for discovery regarding the issue of exhaustion and to respond to any requests for discovery propounded on Defendants by Plaintiff regarding this issue; (3) the parties were allowed until June 30, 2021, to file any motion for summary judgment regarding the issue of exhaustion; (4) the deadlines for completing fact discovery in this matter and for filing dispositive motions with regard to Plaintiff's substantive claims for relief were stayed pending the resolution of the issue of exhaustion. The deadline for filing motions regarding exhaustion was extended, by stipulation, to July 7, 2021. (ECF No. 108).
The Order to Show Cause was deemed satisfied on October 14, 2021, and Plaintiff was given leave to substitute Edwards for the defendant previously identified as Unknown Captain. (ECF No. 133).
Defendants filed a motion for summary judgment based on exhaustion. (ECF No. 111). Citing jail incident reports and Plaintiff's medical file, Defendants asserted:
1. On April 25, 2018 at approximately 5:02 pm, medical arrived at Plaintiff's cell (G511) for a vitals check. See Exhibit 1 (Excerpts from Plaintiff's PCJ Medical File) at ¶ 000003; Exhibit 2 (Incident Reports) at ¶ 000112.
2. He was difficult to arose [sic] and stated he “fell out . . . got dizzy and blacked out [and] .. . hit [his] head on the chair.” (Ex. 1 at ¶ 000003.)
3. No visible injuries were noted by medical. Id.
4. ... Defendant Nurse Dowd asked him to sit up so his vitals could be taken. Id.
5. Plaintiff “appeared to be confused” and Defendants Gallo, Aguirre, Lockhart, and D'Amico assisted him to a chair to get his vitals taken. (Ex. 2 at ¶ 000113, JD000115.)
6. As they assisted Plaintiff outside the pod door, he began to resist. (Id.; Ex. 1 at ¶ 000003.)
7. As a result, Plaintiff was placed on the floor to obtain compliance. Id.
8. Medical was unable to complete the evaluation due to Plaintiff's behavior. Id.
9. Mental Health ordered that Plaintiff be rehoused to cell G303 for medical observation. Id.
10. Plaintiff walked to cell G303 with assistance, but upon arriving at the cell, again became combative and refused to follow directions, stating he did not want to be housed in cell G303. (Ex. 1 at ¶ 000003; Ex. 2 at ¶ 000112.)
11. Plaintiff was again placed on the floor to obtain compliance. Id. Plaintiff agreed to comply, was placed in a chair, and his vitals were taken. Id.
12. Plaintiff was then placed in cell G303. Id.
13. Before Defendant Nurse Dowd could return to the medical unit, an officer observed coffee-ground emesis in Plaintiff's cell. [] The provider was notified and Plaintiff was sent to Mountain Vista Medical Center (“MVMC”) for further evaluation. []
***
21. While Plaintiff claims he woke up in a restraint chair at PCJ at 2:00 a.m. on April 26, 2018, and was “floating in and out of consciousness,” (Dkt. 30 at 10-11) that is not possible as he was admitted to MVMV on April 25, 2018 and therefore was at the hospital on April 26, 2018. (Id. at ¶ 001403-05.)(ECF No. 112 at 1-2, 3) (some internal citations omitted). Attached to the motion for summary judgment are incident reports citing a “date of incident” as “4/25/18,” which track the general allegations of Plaintiff's Amended Complaint regarding the movement of Plaintiff, where he was housed, vomiting, and bleeding, and being placed into a “wrap.” (ECF No. 112-2 at 1-14).
In his statement of facts in support of his opposition to the motion for summary judgment, Plaintiff did not contest when, exactly, the incident in question occurred, although he did allege that he was “left in G Unit for a lengthy period of time before he was found lying in a pool of his own blood on the floor of his cell.” (ECF No. 128 at 2). Plaintiff also “assert[ed] that his memory and recollection of the specific timeline of events has been affected by his medical conditions and the passage of time, and he may have mistakenly confused dates.” (ECF No. 128 at 3). In his controverting statement of facts Plaintiff alleged:
81. On or around April 24, 2018, while house in “H Unit”, Plaintiff experienced severe gastrointestinal pain causing him to fall to the floor, vomit, and bleed from his rectum. See Exhibit I (Expanded Excerpts from Plaintiff's PCJ Medical File) at ¶ 000004-6; Exhibit A.
82. While Plaintiff clutched his stomach on the ground in the fetal position, Plaintiff's cell mates alerted nearby PCJ guards that Plaintiff required medical attention. Id.
83. Plaintiff's door to his cell was opened, and Plaintiff managed to walk from his cell to the “bubble”, a nearby secured space from which the guards performed their general duties. Id.
84. At the bubble, Plaintiff attempted to consult Defendant Nurse Dowd about his pain; however, shortly thereafter, the severity of Plaintiff's pain caused him to fall to the ground. (Exhibit B; Exhibit I at ¶ 000005.)
85. While on the ground, clutching his stomach and crying in agony, Defendants Damico, Gallo, Aguirre, and Lockhart began to give various instructions to Plaintiff. Id.
86. Plaintiff, overwhelmed with extreme pain, was unable to immediately respond to those instructions. Defendants, who knew that Plaintiff was experiencing a debilitating medical crisis, and who could hear and see that Plaintiff was overwhelmed with pain on the floor, seized the opportunity to pretend he was intentionally resisting their commands and cruelly assaulted Plaintiff while he was down, including kicking and punching him repeatedly in his head and stomach. Id.
87. Shortly thereafter, Plaintiff was moved to isolation in “G Unit.” (Exhibit I at JD000005.)
88. On April 24, 2018, following the assault by PCJ officers, Plaintiff began complaining about the assault. Plaintiff complained to one mental health provider that “he was beat up by the security officers last night” and that he “feels like crap.” (Exhibit A at ¶ 000032.)(ECF No. 128 at 9-10).
Attached to Plaintiff's statement of facts is a Segregation Admission form dated April 24, 2018, with a time of 4 p.m., with an interview time and date of April 23, at 11:15 p.m., stating Plaintiff was alert and oriented as to self and place, but “unable to verify date. Inmate also stated to RN to ‘go f[**k] yourself, I need to go to the hospital.'” (ECF No. 126 at 7). A Mental Health Note signed and dated on April 24, at 9:40 a.m., states: “Inmate seen on G 300. States he was beat up by the Security Officers last night. States he feels like ‘crap.'” (ECF No. 126 at 9). At that time Plaintiff asked for “ice and bottled water,” and he requested “a shower.” (Id.). A Psychiatric Progress Note dated April 24, with a time of 4:50 p.m., states Plaintiff reported “‘five guards' assaulted him causing him to be ‘incapacitated.' He reports that the assault left him with a ‘head injury.' He is adamant that he was not assaulted by other inmates. He is currently going through opiate withdrawal. ... He reports he has been vomiting and having diarrhea.” (ECF No. 126 at 110). The interviewer noted: “There are possibilities why he would state officers assaulted him last night. there is a possibility that he was forced out of his cell due to his vomiting and diarrhea, and not wanting to be a snitch; he would blame the officers.” (ECF No. 126 at 11).
The Court denied Defendants' motion for summary judgment on the issue of exhaustion on October 15, 2021 (ECF No. 134), and the parties resumed discovery.
On January 6, 2022, the Court ordered Defendants to take Plaintiff's deposition no later than February 4, 2022; that discovery be completed no later than April 8, 2022; and that dispositive motions be filed no later than May 16, 2022. (ECF No. 139). The deadlines for completing discovery, expert witness disclosure and depositions, and for filing dispositive motions were later extended per the parties' stipulation. (ECF No. 146 & ECF No. 149). The already-expired and un-stayed deadline for seeking leave to further amend the complaint or add parties was not extended.
II. Plaintiff's Motion to Amend
Plaintiff's pending motion to amend was docketed April 20, 2022, more than one year after Plaintiff obtained counsel and sixteen months after the deadline for further amending his complaint. Defendants oppose Plaintiff's motion to amend. (ECF No. 159). Plaintiff has not docketed a reply in support of the motion to amend.
In the motion to amend Plaintiff argues, citing Rule 15(a)(2) of the Federal Rules of Civil Procedure:
A party's request to amend their pleadings is governed by Federal Rule of Civil Procedure 15(a). Rule 15(a) permits amendment “by leave of court or by written consent of the adverse party.” Fed. R. Civ. Proc. 15(a). Rule 15(a) provides further that “leave to amend shall be freely given when justice requires.”
Here, this Court should grant leave to Plaintiff to amend its complaint and name all proper Defendants involved in the incident on approximately
April 24, 2018 which was alleged in his original Complaint and which is relevant to his claims because justice requires. Plaintiff has been led to believe by Defendant Lamb that his incident occurred on April 25, 2018. Based on Plaintiff's reliance and this Court's Order to Defendants to produce the names of the unknown officers alleged in Plaintiff's original complaint, Plaintiff has proceeded with his lawsuit against Defendants D'Amico, Lockhart, Gallo, and Edwards, with the understanding that there was no other incident that occurred on or about April 24, 2018, according to Defendant Lamb's representation to this court.
Based on the recently discovered information by Plaintiff's counsel, we now know this to be untrue. In fact, a disciplinary record for Plaintiff Doering was discovered which identifies the “violation date” as April 24, 2018. (See Exhibit 4). Further, the disciplinary record references an incident number of J18042311, which is understood to mean that the incident was a Jail Incident on April 23, 2018, and the 11th incident of the day. Plaintiff relied on this Court's Order and Defendant Lamb's good faith obligation to comply with this Court's Order to provide the Defendants' names in his originally filed Complaint. Unfortunately, Sheriff Lamb, by and through counsel, only identified one date of incident, April 25, 2018, and failed to disclose any information with respect to the disciplinary record or the incident which appears to have occurred on April 23, 2018 and ended on April 24, 2018 - the same date of incident Plaintiff Doering alleges in his original complaint.(ECF No. 152 at 10-11). Plaintiff also contends:
Further, through Counsel, Plaintiff has potentially identified the remaining Defendants that should have been provided by Defendant Lamb at the outset: Officers Kishpaugh, Holmes, Baptisto, Harrison, Titch, Lillie, and Alcantar, Sergeant Murietta, Sergeant York, and Liutenant [sic] Swafford, and Defendant Nurse Rounds. Please note that these officers' and nurses names are only mentioned in one single record, found by Plaintiff's counsel, in the more than 10,000 pages of documents he reviewed in preparation for the Defendants' depositions that were scheduled on April 18, 2022. (See Exhibit 5, sealed medical record, pg. 5). When Plaintiff's counsel discovered this medical record and the disciplinary record, he requested attorneys for all Defendants to discuss the two records and requested a stipulation to add the additional parties and stipulation to reset discovery deadlines, which were rejected on April 18, 2022. As soon as Plaintiff's request was rejected, Plaintiff's Counsel began preparing this motion.
For the above stated reasons, this court should grant Plaintiff's motion to amend his complaint and include the newly discovered Defendants, that should have been disclosed at the outset. Further, to expedite this matter,
Plaintiff requests this Court to order Defendants disclose all incident reports involving Plaintiff Jeffrey Doering on or about April 23, 2018 along with the names of all unknown officers and unknown nurses with respect to the incident that appeared to have started on April 23, 2018 and ended in the early morning hours of April 24, 2018. Plaintiff avows to amend his complaint expeditiously, effectuate service expeditiously upon these true Defendants, that were never disclosed by Defense Counsel.(ECF No. 152 at 12-13).
Exhibit 4 is a Disciplinary Report No. J18042311, with a violation date of April 24, 2018, at 10:50 p.m., regarding “disobeying a verbal or written order” and “refusal of an assignment,” at the “H Unit.” (ECF No. 155 at 2). No other disciplinary report is attached to Plaintiff's pleading on the motion to amend. The report contains no other information.
In his original complaint Plaintiff alleges Damico
... personally participated in [a] very senseless and unprovoked beating of [Plaintiff] on approximately 4/24/2018. Sheriff Deputy Damico, believed to be a part of 5 to 6 deputies who rapidly responded to this situation involving [Plaintiff].” (ECF No. 1 at 7). Plaintiff alleged he was “being housed in (H-Block) was on the floor by the (Bubble) holding his stomach crying out in unrelenting agonizing abdomenal [sic] pain in front of the nurse when Officer Damico, an unknown Captain and others approached him demanding that he stop resisting . [Plaintiff went down in his cell, . was throwing up repeatively and bleeding out the rectum ... Officers Domaico and unknown others repeatively and senselessly started kicking [Plaintiff] in his back, and his stomach and to his head ... until they perceived that [Plaintiff] was un-concious ... [Plaintiff] woke up in a restraint chair, after waking up he was quickly removed to a different area where he was stripped naked, then put in a (Turtle Suit) ... then thrown into an empty cell placed on (Suicide Watch). Approximately 2:00 AM the very next day in (cell G-303) A deputy just happened to walk by peeking into the cell where he noticed [Plaintiff] laying on the floor his body appearing to be lifeless, where he defected [sic] feces unto himself, where also he had just threw up again black blood, [and was bleeding from the rectum.](ECF No. 1 at 8-9).
The attached “Exhibit 5” is a medical record apparently produced to Plaintiff on or about June 10, 2020. This exhibit is a medical record of “Rounds” dated April 24, 2018, which states:
RN and med nurse went to unit because officers called requesting medical for inmate c/o pain in stomach and bleeding. No samples, when samples were requested and inmate stated “go dig it out of the toilet” RN stated no ... inmate became belligerent and foul language. RN stated to officers that until he gets samples he can go back to his cell. Inmate refused and officers tried to cuff inmate and he fought and was noncompliant. ICS was called at 23-1 on 4-23-18 RN waited as officers Kishpaugh, Holmes, Baptisto, Harrison, Titch, Lillie, and Alcantar tried to cuff inmate. SGT Murrietta, York, and LT Swafford arrived, camera was brought out. They were able to get inmate cuffed at 2304 on 4-23-18. Officers allowed inmate to try and calm down when inmate started shaking, and tensing body up. Inmate was cuffed at the feet behind his back as well. Inmate calmed down and was placed in wheelchair at 2313 .RN asked inmate if he wanted to hurt anyone and he said no, RN asked if he wanted to hurt himself inmate stated yes, no plan. Inmate was placed on Suicide watch and segregated to G unit.(ECF No. 155 at 4 “JD000005”). A medical record of “Rounds” dated April 23, 2018, states: “Inmate was C/O blood in his stool and vomiting Feces. Med Nurse had taken vitals for medication administration . Nurse saw inmate and requested Stool sample and vomit sample . Inmate was given sample cups for Stool and vomit, Lisinopril ordered and given.” (ECF No. 155 at 4-5 “JD000005” and “JD000006”).
In response, Defendants assert:
On May 22, 2020, after attempts by Plaintiff to identify the unknown Defendants were unsuccessful, the Court ordered Sheriff Lamb to identify the three unknown officers “who were working in the section of the jail where Plaintiff was detained and who were supervised by Defendant D'Amico on April 24, 2018.” (Dkt. 14 at 2-3.) The Court's Order also required Sheriff Lamb to provide information regarding where these individuals may be served and, if they were former employees, to disclose their last known home addresses under seal. (Id.) The Court's Order did not require Sheriff Lamb to provide any additional information, such as identification of every incident involving Plaintiff, as Plaintiff's instant Motion purports to allege.
On June 26, 2020, Sheriff Lamb notified the Court that Pinal County Jail had no record of an April 24, 2018 incident involving Defendant D'Amico or Plaintiff. (Dkt. 18 at 1.) Despite not being required to, and in order to streamline litigation, Sheriff Lamb voluntarily disclosed that Defendant D'Amico responded to a medical incident involving Plaintiff on April 25, 2018. (Id.) And noted that, “[a]ssuming this is the incident Plaintiff refers to in his Complaint (Dkt. 1), the following officers were present: Officer M. Aguirre, Officer L. Lockhart; and Officer R. Gallo.” (Dkt. 18 at 1.) Indeed, the April 25, 2018 incident tracks the allegations in Plaintiff's Complaint and is the only incident involving Officer D'Amico-the only Defendant that Plaintiff was able to identify. Specifically, on April 25, 2018, Plaintiff resisted officers who were attempting to assist him in receiving medical treatment. (Dkt. 111 at 1.) After observing coffee-ground emesis in Plaintiff's cell, he was sent to Mountain Vista Medical Center for further evaluation. (Id. at 2.)
Upon Sheriff Lamb's identification of this incident and the officers involved, Plaintiff agreed that the April 25, 2018 was the incident he was referring to and, on August 7, 2020, moved to amend his Complaint to substitute the unknown defendants with the individuals identified in Sheriff Lamb's June 26, 2020 Notice. (Dkt. 23; Dkt. 24.) On October 8, 2020, the Court granted Plaintiff's Motion and screened his First Amended Complaint.
(Dkt. 29.) Since that time, and for the last year and a half, all parties have litigated the April 25, 2018 incident.
On December 3, 2020, among other items, Defendants produced Plaintiff's medical records (including the record attached as Exhibit 5 to Plaintiff's Motion which he be served and, if they were former employees, to disclose their last known home addresses under seal. (Id.) The Court's Order did not require Sheriff Lamb to provide any additional information, such as identification of every incident involving Plaintiff, as Plaintiff's instant Motion purports to allege.
At no time did Plaintiff seek leave to further amend his First Amended Complaint to include an incident from a different date involving different officers. On March 25, 2021, Plaintiff retained counsel. (Dkt. 93.) He has been represented by counsel since this time-for over 14 months.(ECF No. 159 at 2-4).
Defendants correctly note the pending motion to amend is not in the proper form, as Rule 15.1(a) of the Local Rules of Civil Procedure requires a motion to amend be accompanied by a redline/strikeout copy of the proposed amended proceeding. (ECF No. 159 at 4). Defendants further note that the deadline for amending the complaint expired December 7, 2020. (Id.). Defendants contend that, because the deadline for seeking leave to amend the operative complaint has expired, Plaintiff's motion must be considered pursuant to Rule 16 of the Federal Rules of Civil Procedure, rather than Rule 15.
III. Analysis
Granting or denying leave to amend is a matter committed to the Court's discretion. E.g., Hartmann v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1129 (9th Cir. 2013). Rule 16(b)(4) provides a party may be granted leave to amend its pleading after the deadline set forth in the scheduling order if the party can show good cause. “Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s ‘good cause' standard primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). The Court should “primarily consider[] the diligence of the party seeking the amendment.” Id. See also Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“If the party seeking the modification was not diligent, the inquiry should end and the motion to modify should not be granted.”).
[T]o demonstrate diligence under Rule 16's “good cause” standard, the movant may be required to show the following: (1) that []he was diligent in assisting the Court in creating a workable Rule 16 order; (2) that [his] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding [his] diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that []he was diligent in seeking amendment of the Rule 16 order, once it became apparent that []he could not comply with the order.Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) (citations omitted). See also Morgal v. Maricopa Cnty. Bd. of Supervisors, 284 F.R.D. 452, 460 (D. Ariz. 2012). “The diligence obligation is ongoing. Parties must diligently attempt to adhere to that schedule throughout the subsequent course of the litigation.” Morgal, 284 F.R.D. at 460 (internal quotations and citation omitted).
Defendants notes that, per the local rule governing pro se prisoner § 1983 actions, the Court issued a scheduling order without requiring the parties to participate in a Rule 16 conference fashioning a case management order. Defendants further aver “it was Defense counsel who proposed and spearheaded the amendment to the Court's Scheduling Order to include expert-related deadlines.” (ECF No. 159 at 6). Defendants also note that, more than one year after obtaining counsel, Plaintiff failed “to timely notice Defendants' depositions prior to the deposition deadline.” (ECF No. 159 at 6-7).
Defendants also maintain
Plaintiff also fails to demonstrate diligence under the second prong of the good cause inquiry, as his noncompliance with the deadline was due to his failure to timely prosecute his claims and review documents that had been previously produced to him. Indeed, it is undisputed that Plaintiff knew of the April 23, 2018 incident before this deadline. Other than arguing counsel did not get around to reviewing documents until the day before Defendants' depositions, Plaintiff offers no explanation as to why he failed to amend his Complaint by the deadline set forth in the Scheduling Order.(ECF No. 159 at 7).
Additionally, Plaintiff's counsel has not filed a reply in support of the motion to amend and does not proffer any reason why they did not seek an extension of the deadline for amendment after appearing as counsel of record in March of 2021, or after counsel received the voluminous discovery produced by Defendants. Plaintiff fails to establish diligence and/or good cause for failing to seek leave to amend the operative complaint prior to the expiration of the deadline for doing so.
Furthermore, if the party seeking to amend shows good cause under Rule 16(b)(4), the Court must then analyze whether amendment would be proper under the liberal requirements of Rule 15(a). See Johnson, 975 F.2d at 608. Before granting leave to amend, Rule 15(a) requires the Court to evaluate the elements of bad faith, undue delay, prejudice to the opposing party, and futility of amendment. See, e.g., Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010). Even if Plaintiff could establish good cause, his motion should be denied pursuant to Rule 15. Allowing Plaintiff leave to amend the complaint to add claims involving a different incident and to add additional defendants, when discovery in this matter has been on-going for nineteen months, and for more than a year after Plaintiff obtained counsel, and when the deadline for completing fact discovery has expired, would prejudice Defendants and result in an unreasonable delay of these proceedings. Moreover, allowing Plaintiff to amend his complaint to bring allegations regarding an April 23, 2018 incident would be futile as the two-year statute of limitations expired on April 23, 2020, more than two years ago, unless the addition of the new defendants relates back to the time of the original complaint pursuant to Rule 15(c) of the Federal Rules of Civil Procedure.
Rule 15(c) provides:
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 his 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.
Accordingly, relation back depends on four factors: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period, i.e., within 120 days after the original complaint was filed. See, e.g., Schiavone v. Fortune, 477 U.S. 21, 29 (1986); Butler v. National Cmty. Renaissance of Cal., 766 F.3d 1191, 1202 (9th Cir. 2014), citing Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013).
It is arguable that the “event” giving rise to the “new claim” against new defendants arises out of the conduct set forth in the original pleading, as Plaintiff attaches no proposed amended complaint delineating what claims against what defendants he seeks to add to his pleading. It is not clear if Plaintiff seeks to add a claim that some defendants used excessive force on him prior to the time that Defendant D'Amico and the other named Defendants used excessive force on him, and in what context. Even if the first factor is satisfied, the remaining three factors governing relation back are not satisfied. The parties to be brought in by amendment did not receive notice of the institution of the action within the limitations period, which expired two years ago, or such that they would not be prejudiced in maintaining a defense on the merits. Nor has Plaintiff shown that but for a mistake concerning the identity of the proper party, the action would have been brought against the party; Plaintiff was present at the time of the events giving rise to his claims, and the only defendant he identified by name as present during the alleged beating was D'Amico. None of the scant information presented by Plaintiff in his motion to amend indicates that D'Amico was present at the date and time Plaintiff alleges another or an alternative group of individuals assaulted him. There is no indication that the proposed defendants received notice of the action or should have known about the action such that they would not be prejudiced by amendment. See Butler, 766 F.3d at 1203 (noting “‘relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge,'” quoting Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541[(2010)). “Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint.” Krupski, 560 U.S. at 548. Notice may be formal, accomplished through service of process, or informal if the proposed defendant is aware that the complaint has been filed and is not prejudiced. Korn v. Royal Caribbean Cruise Line, Inc., 724 F.2d 1397, 1399 (9th Cir. 1984). The proposed defendants did not receive any formal notice through service of process. Nor is there any indication that they knew the complaint had been filed. Accordingly, “relation back” does not apply and Plaintiff's motion to add the additional defendants should be denied as such amendment would be futile because the statute of limitations regarding these defendant has long since expired. See Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989). Furthermore, any disagreement or unawareness of the dates and times of the incident(s) giving rise to Plaintiff's claims was thoroughly discussed, and documents were produced, during the pleading of the motion for summary judgment on the issue of exhaustion. Plaintiff would have or should have had knowledge regarding the alleged undisclosed “incident” no later than July of 2021, when the medical records and incident reports were disclosed. Certainly counsel, Gurion Legal, who entered an appearance on behalf of Plaintiff in March of2021, should have reviewed the subject documents at some point prior to April of 2022 when preparing for depositions, and as noted supra any dispute regarding what incident happened when and involving who was known to Plaintiff's counsel at the time the motion for summary judgment on the issue of exhaustion was being pled in the late summer of 2021.
Accordingly, IT IS RECOMMENDED that Plaintiff's motion at ECF No. 152 be denied.
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. 7(b)(2). Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
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 determinations 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.