Opinion
Civ. No. 2:15-cv-01965-SU
06-04-2020
RONALD D. KIGHT, Plaintiff, v. C. CLAYTON; SGT. ESPINOZA, Defendants.
FINDINGS & RECOMMENDATION
Plaintiff Ronald D. Kight brings this action against Defendants C. Clayton and Sgt. Espinoza for violating his right to be free from cruel and unusual punishment, as well as for battery. This matter comes before the Court on a Motion for Summary Judgment filed by Defendants and on a Motion to Amend the Complaint filed by Plaintiff. ECF Nos. 100, 112. Pursuant to LR 7-1(d)(1), the Court has determined that these motions are appropriate for resolution without oral argument.
For the reasons discussed below, Plaintiff's Motion to Amend should be DENIED and Defendants' Motion for Summary Judgment should be GRANTED. Final judgment should be entered in Defendants' favor.
LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show "that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630-31.
BACKGROUND
I. Factual Background
Defendants Clinton Clayton and Jose Espinoza are Correctional Sergeants with the Oregon Department of Corrections ("ODOC") at the Two Rivers Correctional Institute ("TRCI"), an Oregon state prison located in Umatilla, Oregon. Clayton Decl. ¶ 1, ECF No. 102; Espinoza Decl. ¶ 1, ECF No. 103.
Plaintiff Ronald D. Kight was a prisoner in ODOC custody from September 26, 2012, through March 27, 2015. Clayton Decl. ¶ 3. During his time in ODOC custody, Kight was housed at TRCI from January 22, 2013, to January 9, 2014. Id.
On the morning of October 25, 2013, Clayton and Espinoza were escorting Kight from a disciplinary hearing back to his assigned cell in the Disciplinary Segregation Unit ("DSU"). Clayton Decl. ¶ 4; Espinoza Decl. ¶ 4. While escorting an "adult in custody," ("AIC") to or from the DSU, policy requires that there be two officers for each AIC and the officers must maintain a physical hold on the AIC. Clayton Decl. ¶ 5; Espinoza Decl. ¶ 5. This is partly for security and partly for safety because the AICs are handcuffed with their hands behind their backs and would not be able to catch themselves if they fell. Id. AICs being escorted in DSU are told not to talk and to remain facing forward. Id.
In this case, Kight was not wearing leg restraints. Clayton Decl. ¶ 5; Espinoza Decl. ¶ 5. Clayton was using his right hand to maintain an "escort-hold" on Kight's left arm, while Espinoza maintained a hold on Kight's right side. Clayton Decl. ¶ 6; Espinoza ¶ 6. During the escort, Kight said "You don't have to fucking be pulling on me like that, man." Id. Clayton told Kight that he was not pulling on him, but that he was required to hold on to Kight to prevent a fall. Id. Kight attempted to jerk his shoulder away from Clayton, at which point Clayton and Espinoza "placed Mr. Kight against a wall and ordered him to stop resisting and to calm down, to which Mr. Kight responded 'You don't have to be pulling on me like that.'" Id.
Once Clayton and Espinoza felt Kight was sufficiently calm, they resumed escorting him back to the DSU. Clayton Decl. ¶ 6; Espinoza Decl. ¶ 6. A third corrections officer, J. Bevan, had heard Kight shouting and arrived to assist Clayton and Espinoza. Clayton Decl. Ex. 2, at 9. Bevan followed Clayton and Espinoza for the rest of the escort and later submitted a report of the incident closely tracking Clayton and Espinoza's description of events. Espinoza Decl. Ex. 2, at 9 (Bevan Report). Kight continued to object to the escort hold during the trip. Clayton Decl. ¶ 6; Espinoza Decl. ¶ 6. When Clayton repeated that he was required to hold on to Kight during escorts, Kight yelled "I'm not talking to you! I'm talking to him," indicating Espinoza. Clayton Decl. ¶ 6.
When they reached Section 1 of the DSU, Kight "slowed his walk and dropped his weight on us forcing himself to drag his feet." Espinoza Decl. ¶ 6. Clayton understood this to mean that Kight "had decided not to walk anymore." Clayton Decl. ¶ 6. Clayton and Espinoza then "placed [Kight] on his stomach on the floor at which time his glasses fell off and hit the floor causing them damage." Id. Clayton, Bevan, and Espinoza then heard Kight clearing his throat and believed that he was preparing to spit on them. Id.; Espinoza Decl. ¶ 6, Ex. 2, at 9.
At that point, Clayton and Espinoza stood Kight up and placed him in the "bent-over-at-the-waist" escort hold, which is used when AICs are not cooperating with an escort. Clayton Decl. ¶ 6; Espinoza Decl. ¶ 6. Kight was taken to a DSU holding cell, rather than his own cell. Id. When he was placed in the cell, Kight was ordered to face the wall while the door was being shut, but Kight turned and spat, hitting the door. Id.
At 10:45 a.m., Kight was examined by a prison nurse, but denied needing medical care. Clayton Decl. Ex. 2, at 10. The nurse submitted a report for the incident. Id.
Clayton and Espinoza submitted an "Unusual Incident Report," as well as a "Use of Force Preliminary Review Summary," following the episode on October 25, 2013. Clayton Decl. Ex. 2, at 2-5. Clayton and Espinoza also submitted reports describing their interaction with Kight on October 25, 2013. Clayton Decl. Ex. 2, at 7-8. Clayton submitted a Misconduct Report, charging Kight with disobedience of an order, disrespect, and attempted staff assault. Clayton Decl. Ex. 2, at 11.
Kight prepared a Tort Claim Notice on October 6, 2014. Washington Decl. Ex. 1, ECF No. 101. The Tort Claim Notice was received by Risk Management in the State Services Division of the Oregon Department of Administrative Services on October 17, 2014. Washington Decl. ¶ 3. Kight was released from ODOC custody on March 27, 2015. Clayton Decl. ¶ 3.
II. Procedural Background
This action was commenced on October 16, 2015. ECF No. 1. Kight was initially represented by attorney Leonard Berman. On March 8, 2017, Berman filed a motion to withdraw as counsel for Kight, indicating that he has been terminated as Kight's attorney. ECF No. 24. On July 10, 2017, the Court granted Berman's motion to withdraw and attempted to secure pro bono counsel for Kight. ECF Nos. 28, 30, 32, 33.
On July 12, 2017, attorney James Halley agreed to represent Kight on a pro bono basis. ECF Nos. 34, 38. On August 9, 2018, Halley sought leave to withdraw as counsel for Kight, citing a breakdown in the attorney-client relationship and Kight's request that Halley withdraw. ECF Nos. 53, 54. This was supported by Kight's own pro se Motions for Disqualification of Counsel. ECF Nos. 57, 58. Kight also began to file pro se motions concerning the authenticity of the prison security footage that captured the October 25, 2013, incident. ECF Nos. 52, 56, 55, 64.
On August 30, 2018, the Court held a status conference at which it denied Halley's Motion to Withdraw with leave to renew in thirty days and directed Halley to assist Kight in finding new counsel. ECF No. 65. The Court also ordered Defendants' counsel to submit an affidavit regarding the authenticity of the security footage.
On September 26, 2018, Defendants submitted two declarations affirming that the security videos "have not been altered in any way." Washington Decl. ¶ 10, ECF No. 66; Withem Decl. ¶ 9, ECF No. 67.
On September 28, 2018, Halley renewed his motion to withdraw as counsel for Kight and affirmed that, despite diligent efforts, he had not been able to secure replacement counsel for Kight. ECF Nos. 68, 69. On October 2, 2018, the Court held a status conference at which it granted Halley's motion to withdraw. Kight thereafter proceeded as a pro se plaintiff. ECF No. 70.
Kight has filed numerous pro se motions and other submissions, many of which concerned his contention that the security footage was altered or edited. ECF Nos. 76, 77, 78, 81, 82, 84, 86, 89. Kight also sought leave to file an amended complaint, which the Court denied because Kight failed to attach a proposed amended complaint. ECF Nos. 84, 87. On March 27, 2019, Kight was given thirty days to file a renewed motion to amend with his proposed amended complaint attached. ECF No. 88. Kight did not renew his motion to amend within the allotted time.
On September 27, 2019, Defendants filed their Motion for Summary Judgment. ECF No. 100. Kight filed a Response to the motion, as well as Memorandum in Opposition to the motion. ECF Nos. 105, 106. On January 16, 2020, Kight sought leave to file a sur-response, which the Court granted. ECF Nos. 108, 113. Kight then filed a series of additional briefs, as well as a Motion to Amend the Complaint. ECF Nos. 110, 111, 112, 113, 114. The Court has reviewed all Kight's submissions in considering the present motions.
While the present motion was pending, the Court also granted Kight an extension of time so that he could find a forensic lab to support his belief that the security footage has been altered. ECF Nos. 108, 109. No forensic report was ever submitted.
DISCUSSION
Kight brings claims against Clayton and Espinoza for (1) violation of his Eighth Amendment right to be free from cruel and unusual punishment pursuant to 42 U.S.C. § 1983; and (2) a state law claim for battery. Defendants move for summary judgment as to both claims.
It is not clear from the Complaint whether Kight intended to bring this action against Clayton and Espinoza in their official or individual capacities. Because the Complaint seeks money damages, the Court presumes that it is against the Defendants in their individual capacities. See Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th Cir. 1994). To the extent Kight intended to bring this action against Defendants in their official capacities, however, such an action is barred by the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
I. Eighth Amendment Claim
Kight alleges Defendants' use of force constituted cruel and unusual punishment in violation of his Eighth Amendment rights. Title 42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). To maintain a claim under § 1983, "a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
"When prison officials use excessive force against prisoners, they violate the inmates' Eighth Amendment right to be free from cruel and unusual punishment." Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). The "unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment." Whitley v. Albers, 475 U.S. 312, 319 (1986) (internal quotation marks and citation omitted). To establish a claim for excessive force based on a prison official's use of force during a prison disturbance, the plaintiff must show the officer applied force maliciously and sadistically for the purpose of causing harm, rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6 (1992); see also Alexander v. Perez, 124 F. App'x 525, 526 (9th Cir. 2005) (the "dispositive question for an excessive use of force claim" is not the degree of injury suffered by the inmate, but whether the force was applied "maliciously and sadistically for the purpose of causing harm.") The standard has objective and subjective elements. Objectively, the alleged wrongdoing must be "harmful enough to establish a constitutional violation." Hudson, 530 U.S. at 8 (internal quotation marks and citation omitted). Subjectively, the prison official must act "with a sufficiently culpable state of mind." Id.
When force is used to keep order in the face of "a riot or a lesser disruption, corrections officers must balance the need to 'maintain or restore discipline' through force against the risk of injury to the inmates." Hudson, 530 U.S. at 6. The use of force that "could plausibly have been thought necessary" will not subject a corrections office to liability for an Eighth Amendment violation. Whitley, 475 U.S. at 321. Prison officials are allowed a "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Id. at 321-22.
"It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319. "The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strictest sense." Id.; Hudson, 503 U.S. at 9 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." (internal quotation marks and citation omitted)).
"[L]iability should turn on 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (quoting Whitley, 475 U.S. at 320-21). Hudson identifies five factors to be considered in making this determination: (1) the need for application of force; (2) the relationship between the need and the amount of force used; (3) the extent of the injury inflicted; (4) the extent of the threat to the safety of staff and inmates as reasonably perceived by the responsible officials on the basis of facts known to them; and (5) any efforts made to temper the severity of the forceful response. Hudson, 503 U.S. at 7. Unless the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in the infliction of pain, the case should not go to the jury. Whitely, 475 U.S. at 322.
In this case, the parties present divergent versions of events. Defendants' version, based on their Declarations, is set forth in the Background section above. In his Complaint, Kight alleges that Clayton shoved him to the floor and pulled him up by his hair before Clayton and Espinoza dragged him down the hall by his arms Compl. ¶¶ 17-18. Kight alleges that Espinoza twisted Kight's arm over his head before Clayton and Espinoza dragged Kight to a concrete pillar and slammed the left side of Kight's face into the wall. Id. at ¶¶ 19-20. Kight alleges that Clayton and Espinoza then dragged him down the hallway to a holding cell, where nurses examined him and laughed at his complaints of mistreatment and abuse. Id. at ¶¶ 21-23.
Defendants have submitted a series of videos taken by various security cameras showing the interaction between Clayton, Espinoza, and Kight during the incident in question. Clayton Decl. Ex. 3. As previously discussed, Kight claims that the videos have been altered, but has not produced any proof or support for that allegation. When the parties offer conflicting accounts and there is video evidence in the record, courts should consider that evidence in assessing whether there is a genuine dispute of material fact. Scott v. Harris, 550 U.S. 372, 378-81 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. at 380.
The Court has reviewed the security footage and found that it is consistent with Defendants' version of events. Kight implicitly acknowledges that the security footage is not consistent with his account by claiming, without support, that the video has been altered. ECF No. 110. In the face of such "blatant contradiction," the Court does not credit Kight's version of the events in assessing Defendants' motion for summary judgment.
The Court therefore turns to the application of the Hudson factors. As to the first factor, the need for the application of force, Clayton and Espinoza were transporting Kight back to his cell when Kight's own conduct necessitated his being placed against a wall and then put into a hold to prevent him from spitting on the officers. The officers did not use any particularly great force in their handling of Kight. They hold his arms, lift him from the floor, put him against a wall, and move him down the hall in a hold position with his arms above his head. In considering the second factor, the Court concludes there is a strong correlation between the officers' need for force and the degree of force they applied.
As to the third factor, the extent of the injury inflicted, Kight has submitted a number of recent medical records indicating that he suffers from injuries which he contends stem from the incident with Clayton and Espinoza. The contemporaneous records, by contrast, show that Kight denied needing medical care following the officers' use of force. Espinoza Decl. Ex. 2, at 10. This factor is, at best, ambivalent, and the use of force was commensurate with the need for force and was appropriate under the circumstances.
For the fourth factor, Defendants reasonably perceived a threat based on Kight's pulling away from the officers and his attempt to spit on them. Their use of force was commensurate with the degree of the threat. As noted, the officers did not use a great deal of force in responding to Kight's actions and Kight was seen by medical staff shortly after the incident and declined treatment. The Court concludes, for purposes of the fifth factor, that Defendants reasonably tempered the degree of force applied.
In sum, upon consideration of the evidence in the record, the Court concludes that Defendants' use force was "applied in a good faith effort to maintain or restore discipline." Hudson, 503 U.S. at 6. The Court cannot conclude that Clayton and Espinoza's actions were done "maliciously and sadistically for the very purpose of causing harm," as required to make out an Eighth Amendment violation.
Defendants' Motion for Summary Judgment should be GRANTED as to Kight's § 1983 claim for violation of his Eighth Amendment rights.
Defendants also assert that they are entitled to the protection of qualified immunity. It is not necessary to reach that issue as there was no Eighth Amendment violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (the initial inquiry in a qualified immunity analysis is whether "the facts alleged show the officer's conduct violated a constitutional right.").
II. State Law Claim
In addition to his federal constitutional claim, Kight alleges a state law claim for battery against Clayton and Espinoza. Compl. ¶¶ 33-34. Kight alleges Clayton and Espinoza were acting within the course and scope of their employment and under color of state law at the time of the incident. Id. at ¶ 5.
The "sole cause of action for a tort committed by officers, employees or agents of a public body acting within the scope of their employment or duties . . . is an action under ORS 30.260 to 30.300." ORS 30.265(2). "No other form of civil action is permitted." Id. "No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section." ORS 30.275(1). A plaintiff must provide the state with notice of a claim within 180 days of any alleged loss or injury. ORS 30.275(2)(b). The plaintiff bears the burden of proving that notice of claim was given as required. ORS 30.275(7). Failure to give timely notice is fatal to a plaintiff's state tort claims against a public body or its officers acting within the scope of their employment or duties. Denucci v. Henningsen, 248 Or. App. 59, 66 (2012); Baumgarner v. Cmty. Servs., Inc., 992 F. Supp.2d 1081, 1086 (D. Or. 2014).
In this case, the alleged battery occurred on October 25, 2013. Compl. ¶ 11. Based on the allegations in the Complaint, Kight was clearly aware of the injury, but he did not mail his Tort Claim Notice until nearly a year later, on October 6, 2014. Washington Decl. Ex. 1. As this date falls outside of the 180-day period provided for by ORS 30.275(2)(b), Kight failed to give timely notice of his claim. Defendants' Motion for Summary Judgment should therefore be GRANTED as to Kight's state law claim for battery.
III. Kight's Motion to Amend the Complaint
Kight's original Complaint was filed on October 16, 2015, with the assistance of Kight's former attorney, Leonard Berman. ECF No. 1. In January 2019, Kight filed a pro se motion to amend his pleadings. ECF No. 84. On March 27, 2019, the Court denied the motion for failure to attach a proposed amended complaint. ECF No. 87. The Court gave Kight thirty days to file a corrected motion to amend the complaint with the proposed amended complaint attached. ECF Nos. 87, 88. No such motion was filed and Defendants moved for summary judgment on September 27, 2019.
During the pendency of Defendants' Motion for Summary Judgment, Kight filed a motion captioned "Amending the Complaint from February and March 2, 2020 on Unnecessary Use of Force 8th Amendment Violation, Neglect of All Parties to Provide Appropriate Medical Treatment, Violated ADA Under the Rehabilitation Act 504 Title Two as a Protected Class," which the Court construes as a motion to amend the complaint to add additional claims and defendants. ECF Nos. 112. Although Kight was previously advised that he must attach a proposed amended complaint to a motion to amend the pleadings, he has again failed to attach a proposed amended complaint to his motion.
On March 10, 2020, Kight submitted a second document captioned "Pleading ORCP 18 Claims for Relief 14-32.1 Assaults on Individual with a Disability Department of ADA Regulation 2010 Tile (II), Regulation Rehabilitation Act 504 (II) Gross Negligence Foreseeable Risk of Harm Director Dr. Steven Shelton Acted in Bad Faith Denied Diabetic Diet Assault and Battery." ECF No. 114. This second document may be the proposed amended complaint and although neither submission complies with the requirements for a motion to amend the complaint, the Court is cognizant of the latitude that must be accorded to pro se plaintiffs and so will consider the documents together.
This document may also have been intended as an additional sur-response to the Motion for Summary Judgment. In an abundance of caution the Court has reviewed the document and considered it in assessing both motions. --------
Federal Rule of Civil Procedure 15(a) provides that a party may amend its pleadings with leave of the court and the court should grant leave "when justice so requires." Fed. R. Civ. P. 15(a). Court should exercise "extreme liberality" in considering motions to amend. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). Courts consider the following factors when determining whether to grant leave to amend: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies; (4) undue prejudice to the opposing party; and (5) futility of the amendment. Sonoma Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting Forman v. Davis, 371 U.S. 178, 182 (1962)). "The party opposing amendment bears the burden of showing prejudice." Robillard v. Opal Labs, Inc., 337 F. Supp.3d 962, 967 (D. Or. 2018) (internal quotation marks and citation omitted).
Prejudice to the opposing party carries the "greatest weight" in determining whether to deny leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Absent prejudice or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. (emphasis in original). Courts should be guided "by the underlying purpose of Rule 15 to facilitate decision on the merits, rather than on the pleadings or technicalities." United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981).
In this case, Kight seeks to amend the complaint to add Medical Director Steven Shelton, "Nurse Gruelwald," and "Psychiatrist Bhatia" as defendants in this case. None of these proposed defendants were mentioned in the original complaint or in Kight's previous motion to amend. The allegations against Bhatia appear to relate to the discontinuation of one of Kight's medications, while the allegations against Shelton appear to concern the denial of a diabetic diet. There are no allegations concerning Nurse Gruelwald. Kight also appears to seek to raise new claims under the Rehabilitation Act, as well as alleging that Clayton and Espinoza denied him access to a CPAP machine. The connection between these new allegations and the allegations of the original complaint is tenuous at best.
A. Futility
Defendants contend that the proposed amendment is futile. A proposed amendment is futile if "no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Sweaney v. Ada Cnty., 119 F.3d 1385, 1393 (9th Cir. 1997) (internal quotation marks and citation omitted). "The test for futility is identical to the standard used for a motion to dismiss for failure to state a claim." De Jesus Pineda v. Ratliff, Case No. 3:18-cv-01630-SB, 2019 WL 6257739, at *3 (D. Or. Nov. 22, 2019). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
In this case, although Nurse Gruelwald is named in the caption as a defendant, there are no allegations concerning Gruelwald in either of Kight's submissions. The amendment is therefore futile as it applies to Gruelwald. Kight provides no dates for Bhatia's discontinuation of his medication or the alleged denial of a diabetic diet by Shelton, but they appear to date from the period of Kight's incarceration, which ended in March 2015. To the extent that Kight's new claims are meant to arise under § 1983 or the Rehabilitation Act, those statutes are generally subject to the two-year statute of limitations contained in ORS 12.110(1). See, e.g., Ramirez v. Parker, No. 3:13-CV-01772-AC, 2014 WL 7187463, at *11-12 (D. Or. Dec. 16, 2014) (so noting). Kight's new claims against Bhatia and Shelton are, on their face, untimely. The proposed amendment would therefore be futile.
B. Undue Delay
To evaluate undue delay, the court must determine when the moving party became aware of the "facts and theories raised by the amendment." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 953 (9th Cir. 2006). In this case, Kight filed his motion to amend more than four years after the original Complaint and more than a year after his previous unsuccessful motion to amend the complaint. The events described appear to have occurred during Kight's incarceration and there is no indication that he was unaware of the relevant facts or theories prior to the filing of the instant motion. Kight offers no explanation for his failure to raise these claims or name the new defendants in the preceding years of litigation. The Court concludes that this undue delay weights heavily against granting Kight's motion.
C. Prejudice
Defendants argue that they will be prejudiced by the proposed amendment because discovery is long-since closed in this case and a motion for summary judgment is currently pending. "Courts are reluctant to grant motions to amend after the parties have finished discovery and filed summary judgment motions." Underwood v. Nooth, Case No. 2:16-cv-01321-PK, 2017 WL 8785575, at *2 (D. Or. Dec. 11, 2017); see also Precision Seed Cleaners v. Country Mut. Ins. Co., No. 03:10-cv-01023- HZ, 2013 WL 12318491, at *3 (D. Or. Jan. 29, 2013) ("[T]he timing of the motion to amend following discovery and with a pending summary judgment motion, weighs heavily against allowing leave."). On this record, and considering especially the timing of Kight's motion, the Court concludes that Defendants have made a sufficient showing of prejudice.
As the proposed amendment would be futile, prejudicial to Defendants, and cause additional undue delay, Kight's Motion to Amend the Complaint, ECF No. 112, should be DENIED.
CONCLUSION
Defendant's Motion for Summary Judgment, ECF. No. 100, should be GRANTED. Plaintiff's Motion to Amend the Complaint, ECF No. 112, should be DENIED. Plaintiff's claims should be DISMISSED and final judgment should be entered in this case.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not 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 judgment.
It is so ORDERED and DATED this 4th day of June 2020.
/s/ Patricia Sullivan
Patricia Sullivan
United States Magistrate Judge