Biscoe v. Davis ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donna Marie Biscoe, No. CV-19-01515-PHX-ROS (CDB) 10 Plaintiff, ORDER 11 v. 12 Corizon Health Incorporated, 13 Defendant. 14 15 Plaintiff Donna Marie Biscoe requests leave to amend her complaint. Magistrate 16 Judge Camille D. Bibles recommends that request be denied. (Doc. 31). Because 17 Plaintiff’s motion and proposed amended complaint do not contain sufficient facts 18 supporting the claims against the defendants she wishes to add, the Magistrate Judge’s 19 recommendation will be accepted and the request to amend the complaint will be denied. 20 On May 20, 2019, Plaintiff filed her First Amended Complaint. (Doc. 11). As 21 explained in the Court’s subsequent screening order, that complaint contained a single 22 count against Corizon Health Services, Arizona Department of Corrections Director 23 Charles L. Ryan, and Nurse Practitioner Patricia Davis. Plaintiff’s allegations focused on 24 the failure to diagnose and treat trichomoniasis, a sexually transmitted infection. The Court 25 interpreted Plaintiff as basing her claim against Corizon on alleged “policies, decisions, 26 and contract restrictions and limitations” that led to Corizon not “test[ing] inmates for 27 trichomoniasis during certain years.” (Doc. 12 at 4). As for Defendant Ryan, Plaintiff 28 alleged he was aware of Corizon’s policies and took no action. And as for Defendant 1 Davis, she allegedly provided inadequate care for Plaintiff’s medical complaints. The 2 Court determined Plaintiff had stated a claim against Corizon based on its alleged policy 3 of not testing but dismissed Ryan and Davis. (Doc. 12 at 4, 6). 4 Corizon answered the complaint and Magistrate Judge Bibles entered a Scheduling 5 Order. (Doc. 16). According to the Scheduling Order, the parties had until December 6, 6 2019, to amend the pleadings. (Doc. 16). On December 2, 2019, Plaintiff moved to amend 7 her complaint “to add Patricia Davis as a defendant . . . for her actions (inactions) in the 8 treatment of plaintiff’s serious medical needs.” (Doc. 23 at 2-3). Plaintiff’s motion, 9 however, did not include a copy of the proposed Second Amended Complaint indicating 10 how it differed from the First Amended Complaint. Therefore, Magistrate Judge Bibles 11 ordered Plaintiff to submit such a copy of the proposed Second Amended Complaint no 12 later than December 27, 2019. (Doc. 26). 13 On December 26, 2019, Plaintiff filed a new motion to amend along with a proposed 14 Second Amended Complaint indicating the changes Plaintiff wished to make. Unlike the 15 previous motion filed on December 2, however, the December 26 motion did not seek to 16 add only Davis. Instead, the December 26 motion sought to add Davis and eight other 17 individuals as defendants. (Doc. 27). Plaintiff explained that she wished to pursue a claim 18 against Davis and the other individuals under the “Federal Tort Claims Act — Eighth 19 Amendment.” (Doc. 28-1 at 4). Corizon opposed the motion to amend, arguing it differed 20 substantially from the motion filed on December 2 and, because the new motion was not 21 filed until December 26, it was untimely under the Scheduling Order. (Doc. 29). On 22 February 20, 2020, Magistrate Judge Bibles issued a Report and Recommendation 23 (“R&R”) regarding the December 26 motion to amend. 24 The R&R treats the December 26 motion as timely but recommends the Court deny 25 the motion on its merits. The R&R explains the proposed Second Amended Complaint 26 only alleges “Davis and the newly-named individuals defendants were negligent and 27 committed malpractice with regarding to Plaintiff’s medical treatment.” (Doc. 31 at 8). 28 Because the standard for asserting a claim under the Eighth Amendment requires the facts 1 point to more than negligence, the R&R concludes it would be futile to allow the 2 amendment. 3 Plaintiff filed timely objections to the R&R. (Doc. 32). According to Plaintiff, the 4 proposed Second Amended Complaint seeks to add “all parties that participated in 5 depriving [Plaintiff] of adequate medical treatment and the treatment of her serious medical 6 need.” (Doc. 32 at 3). Plaintiff’s objections, however, do not explain how the facts in the 7 proposed Second Amended Complaint are sufficient to support a claim against each of the 8 newly identified individuals. 9 As explained in the Court’s Screening Order, “[n]ot every claim by a prisoner 10 relating to inadequate medical treatment states a violation of the Eighth Amendment.” 11 (Doc. 12 at 5). To state such a claim, a plaintiff must allege facts showing a defendant 12 acted with “deliberate indifference.” That is a “high legal standard” that requires a 13 defendant do more than merely act with “negligence or lack of ordinary due care.” (Doc. 14 12 at 5). Beyond alleging facts to meet this high standard, a plaintiff must also allege the 15 “specific facts linking each defendant to [the claimed] violation.” Ortez v. Washington 16 Cty., State of Or., 88 F.3d 804, 809 (9th Cir. 1996). In other words, a plaintiff must allege 17 the specific acts or inactions by each defendant that caused a violation of her rights. 18 The proposed Second Amended Complaint does not contain sufficient factual 19 allegations regarding the actions or inaction of each individual defendant Plaintiff wishes 20 to add. Plaintiff does allege some facts regarding her interactions with Defendant Davis 21 but those facts show only negligence or malpractice. As for the eight other individuals, 22 there are no meaningful allegations regarding what each individual did or failed to do. 23 Plaintiff does allege that the various individuals “never recommended that any further 24 testing for other diseases be conducted, done on [her].” (Doc. 28 at 6). But without any 25 elaboration of the nature of Plaintiff’s interactions with these individuals, there is no basis 26 to conclude the individuals had an obligation to make such recommendations. Therefore, 27 Plaintiff has not stated plausible claims against the individuals and her proposed 28 || amendment would be futile.’ 2 Accordingly, 3 IT IS ORDERED the Report and Recommendation (Doc. 31) is ADOPTED. The 4|| Motion for Leave to Amend Complaint (Doc. 27) is DENIED. 5 Dated this 8th day of May, 2020. 6 fo □ 7 ( — . 9 Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ' The R&R also correctly observes that Plaintiff describes her proposed claim against the 27 individuals as brought pursuant. lo the Federal Tort, Claims Act. hy Those individuals, 28 atempting to amend to state a claim under the Federal Tort Claims Act. such an amendment would be futile. -4-