(PC) Taylor v. Commissioner of the California Department of Corrections and Rehabilitation ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PRESTON TAYLOR, ) Case No.: 1:20-cv-00798-JLT-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATION 13 v. ) REGARDING PLAINTIFF’S MOTION TO AMEND THE COMPLAINT AND MOTION TO 14 COMMISSIONER OF CALIFORNIA ) REOPEN DISCOVERY DEPARTMENT OF CORRECTIONS AND ) 15 REHABILITATION, et al., ) (ECF Nos. 44, 50) ) 16 ) Defendants. ) 17 ) 18 Plaintiff Preston Taylor is proceeding in forma pauperis in this civil rights action pursuant to 19 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s motion to amend the complaint and motion to reopen 21 discovery, filed December 10, 2021 and December 22, 2021, respectively. Defendant filed an 22 opposition December 24, 2021 and January 5, 2022. Defendant did not file a reply. 23 I. 24 PROCEDURAL HISTORY 25 This case is proceeding against Defendant Turner for excessive force and against Defendant 26 John Doe for deliberate indifference to a serious medical need in violation of the Eighth Amendment. 27 Defendant P. Turner filed an answer to the complaint on December 14, 2020. 28 /// 1 After the case did not settle at the settlement conference, the Court issued the discovery and 2 scheduling order on February 19, 2021. 3 On August 18, 2021, the Court approved the parties stipulation to extend the discovery and 4 dispositive motion deadlines. (ECF No. 36.) 5 On October 19, 2021, the Court approved the parties stipulation to extend the deadline to 6 amend the pleadings. (ECF No. 40.) 7 On October 28, 2021, this Court issued an order re clarification. (ECF No. 41.) 8 On November 19, 2021, Defendant filed a request for clarification of the Court’s October 28, 9 2021 order. (ECF No. 42.) 10 On November 29, 2021, a minute order was issued stating, “ ‘The order of clarification (ECF 11 No. 41) was not intended to stay any deadlines in this matter. It merely advised the parties that they 12 "should expect that no matter in [this] case[] will be addressed by a district judge.’ The order of 13 clarification also indicates that the assigned magistrate judge may ‘elect to stay discovery and other 14 proceedings in [this case] entirely or may allow proceedings that do not require the attention of a 15 district judge to continue to move forward’ In the absence of action by the assigned magistrate judge 16 affirmatively staying discovery, discovery deadlines remain in place signed by District Judge Dale A. 17 Drozd on November 29, 2021.” (ECF No. 43.) 18 On December 10, 2021, Plaintiff filed a motion to amend the complaint. (ECF No. 44.) 19 Defendant filed an opposition on December 24, 2021. (ECF No. 51.) Plaintiff did not file a reply. 20 On December 22, 2021, Plaintiff filed a motion to reopen discovery and set a hearing date of 21 January 5, 2022. (ECF No. 50.) On December 28, 2021, the Court reset the hearing to January 12, 22 2022. (ECF No. 52.) Defendant filed an opposition on January 5, 2022. (ECF No. 53.) Plaintiff did 23 not file a reply. 24 II. 25 DISCUSSION 26 A. Motion to Amend 27 The deadline to amend the pleadings passed on November 1, 2021. As Plaintiff’s request to 28 amend is filed after the expiration of the scheduling order for amendment, the Court must apply the 1 standard for amending the scheduling order under Federal Rule of Civil Procedure 16, rather than the 2 more liberal amendment standard under Rule 15. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294- 3 95 (9th Cir. 2000) (district court correctly addressed motion for leave to amend under Rule 16 because 4 it had issued a pretrial scheduling order that established a timetable for amending the pleadings and the 5 motion was filed after the deadline expired). 6 Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order 7 controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P. 8 16(d). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b), 9 and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 10 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling 11 order must generally show that even with the exercise of due diligence, they cannot meet the 12 requirement of that order. Id. The court may also consider the prejudice to the party opposing the 13 modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the 14 inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern 15 California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the 16 court’s deadline date for discovery by demonstrating good cause for allowing further discovery. Fed. 17 R. Civ. P. 16(b)(4). 18 “Good cause may be found to exist where the moving party shows that it diligently assisted 19 the court with creating a workable scheduling order, that it is unable to comply with the scheduling 20 order’s deadlines due to matters that could not have reasonably been foreseen at the time of the 21 issuance of the scheduling order, and that it was diligent in seeking an amendment once it became 22 apparent that the party could not comply with the scheduling order.” Kuschner Nationwide Credit, 23 Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009). 24 Plaintiff seeks leave to amend the complaint to replace Doe 1 as lieutenant E. Burden and to 25 add nurse Smith as a Defendant and claim for negligence. Defendant opposes Plaintiff’s amendment 26 on the ground that Plaintiff failed to act with due diligence and is arguably acting in bad faith. 27 /// 28 /// 1 Plaintiff submits that counsel determined nurse Smith should be added as a defendant given her 2 role in Plaintiff’s medical treatment, and a claim for negligence is viable on the same facts as set forth 3 in the operative complaint. In addition, on December 8, 2021, during defense counsel’s questioning at 4 Plaintiff’s deposition, Plaintiff determined the identify of Doe 1 as lieutenant E. Burden. Plaintiff 5 argues good cause exists to replace Doe 1 as lieutenant E. Burden, given Plaintiff recently discovered 6 the identity at his deposition on December 8, 2021, and good cause exists to add nurse Smith as a 7 Defendant and add a claim of negligence, because Plaintiff inadvertently failed to name nurse Smith 8 and excluded a negligence claim as a pro se litigant. 9 Plaintiff’s motion to amend should be denied in part and granted in part. Defendant initially 10 agreed to a 60-day continuance, to October 18, 2021, to allow Plaintiff to amend the complaint, yet 11 Plaintiff failed to do so. (Jameson Decl. ¶¶ 3, 5.) On the eve of October 18, 2021, at Plaintiff’s 12 request, Defendant informed Plaintiff that he would not oppose extending the deadline to amend the 13 pleadings again, to November 1, 2021. (Id. ¶¶ 5, 7.) However, despite being granted an additional 14 fourteen days to amend the pleadings, Plaintiff failed to fail an amended complaint by November 1, 15 2021. (Id. ¶ 10.) Rather, on November 1, 2021 at 12:00 p.m., Plaintiff emailed a copy of the proposed 16 amended complaint to Defendant and requested a stipulation. (Id.) Defendant declined to stipulate to 17 the amendment because there was insufficient time to review the proposed amended complaint, and 18 because Plaintiff added new causes of action and new Defendants that had not been previously 19 discussed. (Id.) 20 Plaintiff has failed to act diligently in seeking to amend the complaint to add nurse Smith and a 21 claim of negligence. Despite the November 1, 2021 amendment deadline, Plaintiff did not seek to 22 amend the complaint until December 10, 2021. Plaintiff was well aware (or should have been aware) 23 of the allegations against nurse Smith and a claim for negligence based on the allegations in the 24 original complaint filed on June 9, 2020. (ECF No. 1.) Therein, Plaintiff alleged, in pertinent part, 25 I was escorted to medical LVN Talley and RN Smither informed John Doe a Superior C/O whose name I did not know, but could identify, that I needed to be sent to the outside hospital 26 to receive proper examination, being shot in the head, a severe injury. 27 I was left just sitting with a major migraine, dizzy and a swollen head. I asked the nurse why 28 am I just sitting here? 1 That when I overheard RN Smith tell LVN Talley that C/O John Doe, who is not in the medical field nor a doctor say not to send me to the outside hospital, warranting unethical 2 misconduct of the John Doe C/O Superior of a severe blunt force trauma head injury. 3 (ECF No. 1, Compl. at 5.) 4 Based on Plaintiff’s allegations, it is clear that he was aware of the identify and actions of 5 nurse Smith and any potential negligence claim well before the November 1, 2021 amendment 6 deadline. The fact that Plaintiff believed (albeit mistakenly) that the Court’s October 28, 2021 stayed 7 the action does not assist him as he had several months prior to the November 1, 2021 deadline to file 8 a motion to amend but failed to do so. 9 The situation is different with regard to Defendant lieutenant E. Burden. The Court’s 10 screening order found that Plaintiff stated a cognizable claim against Defendant P. Turner for 11 excessive force and against Defendant John Doe for deliberate indifference to a serious medical need 12 in violation of the Eighth Amendment. (ECF No. 16.) Plaintiff submits that he did not discover the 13 identity of the Doe Defendant until Plaintiff’s deposition on December 8, 2021, and Defendant does 14 not dispute this fact. Plaintiff filed the instant motion to amend on December 10, 2021, just two days 15 after obtaining knowledge of the Doe Defendant. Therefore, the Court finds good cause under Federal 16 Rule of Civil Procedure 16(b). 17 Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s 18 pleading once as a matter of course twenty-one days after serving, or if a response was filed, within 19 twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend 20 only by leave of the court or by written consent of the adverse party, and leave shall be freely given 21 when justice so requires. Fed. R. Civ. P. 15(a)(2). 22 Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so requires.’” 23 AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R. 24 Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices 25 the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is 26 futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not 27 bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2); Owens 28 1 v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The 2 burden to demonstrate prejudice falls upon the party opposing the amendment. DCD Programs, Ltd. v. 3 Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Absent prejudice, or a strong showing of any of the 4 remaining three factors, a presumption exists under Rule 15(a) in favor of granting leave to amend. 5 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Further, undue delay 6 alone is insufficient to justify denial of a motion to amend. Bowles v. Reade, 198 F.3d 752, 758 (9th 7 Cir. 1999). 8 In opposing amendment as to deliberate indifference claim against, Defendant argues any 9 claim is not exhausted. However, the Court cannot and will not evaluate exhaustion of the 10 administrative remedies raised by way of opposition to a motion to amend as it is an affirmative 11 defense to be proven by Defendant. See Albino v. Baca, 747 F.3d 1162, 2269 (9th Cir. 2014) (en 12 banc) (dismissal of a prisoner civil rights action for failure to exhaust administrative remedies must 13 generally be decided pursuant to a motion for summary judgment under Rule 56, Federal Rules of 14 Civil Procedure). Accordingly, the Court recommends that Plaintiff’s motion to amend be granted 15 with respect to Defendant Doe 1, lieutenant E. Burden and denied as to Defendant nurse Smith. 16 B. Motion to Reopen Discovery 17 Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only 18 for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4); see also Green Aire for Air 19 Conditioning W.L.L. v. Salem, No. 1:18-cv-00873-LJO-SKO, 2020 WL 58279, at *3 (E.D. Cal. Jan. 20 6, 2020.) (“Requests to modify a scheduling order are governed by Rule 16(b)(4), which provides that 21 a court may modify a scheduling order ‘only for good cause.’ ”). As the Ninth Circuit has explained, 22 In these days of heavy caseloads, trial courts in both the federal and state system routinely set schedules and establish deadlines to foster the efficient treatment and 23 resolution of cases. Those efforts will be successful only if the deadlines are taken 24 seriously by the parties, and the best way to encourage that is to enforce the deadlines. Parties must understand that they will pay a price for failure to comply strictly with the 25 scheduling and other orders, and that failure to do so may properly support severe sanctions and exclusions of evidence. 26 Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005); see also Johnson v. 27 Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (“A scheduling order ‘is not a frivolous 28 1 piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.’ ”) (citation 2 omitted). 3 Good cause requires a showing of due diligence. Johnson, 975 F.2d at 609; Sprague v. Fin. 4 Credit Network, Inc., No. 1:18-cv-00035-SAB, 2018 WL 4616688, at *4 (E.D. Cal. Sept. 25, 2018) 5 (“[Good cause] requires the party to show that despite due diligence the scheduled deadline could not 6 be met.”)). For example, good cause may be found where the moving party shows that it was diligent 7 in assisting the Court in creating a workable scheduling order, that it is unable to comply with the 8 scheduling order's deadlines due to matters not reasonably foreseeable at the time the scheduling order 9 issued, and that it was diligent in seeking a modification once it became apparent it could not comply 10 with the scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999). The party 11 seeking to modify a scheduling order bears the burden of demonstrating good cause. Handel v. Rhoe, 12 No. 14-cv-1930-BAS(JMA), 2015 WL 6127271, at *2 (S.D. Cal. Oct. 16, 2015) (citing Zivkovic v. S. 13 Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Johnson, 974 F.2d at 608-609.) 14 The discovery deadline expired on December 14, 2021. Plaintiff seeks to reopen discovery for 15 at least three months for the limited purpose of deposing two witnesses, nurse Smith and lieutenant 16 Burden. 17 On August 12, 2021, the parties stipulated for a 60 day extension of the discovery and 18 dispositive motion deadlines. On August 18, 2021, the parties met and conferred and defense counsel 19 agreed to provide initial disclosures documents. On September 20, 2021, while Plaintiff’s counsel was 20 attending trial lawyers’ college, Defendant served the initial disclosures without documentation. (Neal 21 Decl. ¶ 4.) 22 On October 18, 2021, Plaintiff submitted a stipulation to extend the deadline to amend the 23 pleadings to November 1, 2018. (ECF No. 39.) The stipulation was approved on October 19, 2021. 24 (ECF No. 40.) Defendant submits that Plaintiff filed the stipulation, without Defendant’s review and 25 with an attestation that Defendant concurred in the content of the stipulation and had authorized 26 its filing. (Jameson Decl. ¶ 5.) 27 /// 28 /// 1 On October 28, 2021, the Court issued an order re:clarification. (ECF No. 41.) Plaintiff 2 submits that he was under the impression that the October 28, 2021 order stayed all deadlines in the 3 case. (Neal Decl. ¶ 5.) Plaintiff therefore decided not to file a Motion to Amend the Complaint by the 4 November 1, 2021 deadline to amend the pleadings, despite the fact the motion was completed before 5 the deadline, and to wait to subpoena Nurse Smith’s deposition. Plaintiff also did not move forward in 6 scheduling his potential November 30th deposition, due to counsel’s understanding that the case was 7 stayed. (Id.) 8 On November 18, 2021, Plaintiff mad his first request to depose a witness in this case— 9 Defendant, in early December. (Jameson Decl. ¶ 12.) 10 On November 19, 2021, Defendant filed a request for the Court to clarify whether or not the 11 discovery deadlines in the case were stayed pursuant to the October 28, 2021 order. (ECF No. 42.) 12 On November 29, 2021, the Court indicated that the October 28, 2021 order was not intended 13 to stay any deadlines in this matter. (ECF No. 43.) 14 On December 8, 2021, during Plaintiff’s deposition he discovered Doe 1’s identity as 15 lieutenant E. Burden. (Neal Decl. ¶ 10.) During a meet and confer conference, Defendant expressed 16 that he would not provide initial disclosure documents and that he could not accept service of a 17 deposition subpoena for Nurse Smith. (Neal Decl. ¶ 11; Jameson Decl. ¶ 14.) 18 On December 10, 2021, Plaintiff filed a motion for leave to replace Doe 1 as lieutenant E. 19 Burden, add nurse Smith and add a claim for negligence. (ECF No. 44.) 20 On this same date, Defendant served the documents identified in the initial disclosures. (Neal 21 Decl. ¶ 14.) 22 On December 21, 2021, the parties filed a stipulation allowing Plaintiff to take Defendant 23 Turner’s deposition on or before March 1, 2022, which was approved by the Court. (ECF Nos. 48, 24 49.) 25 Plaintiff did not act with due diligence in pursuing discovery with regard to nurse Smith. 26 Discovery in this action began on February 19, 2021 and expired on December 14, 2021. Plaintiff did 27 not make his first request to depose a witness in this case—Defendant—until mid-November 28 approximately a month before the discovery deadline. Defendant agreed and offered to be deposed 1 anytime during the second week of December, December 6-10, 2021. (Jameson Decl. ¶ 12.) 2 However, Defendant did not hear back from Plaintiff. (Id.) 3 On December 8, 2021, six days prior to the discovery deadline, Plaintiff contacted Defendant 4 for the first time with a request to take the deposition of non-party, non-represented, nurse Smith. 5 (Jameson Decl. ¶ 14.) Defendant informed Plaintiff that he was not authorized to accept a subpoena 6 on behalf of a non-part, and to serve the subpoena for the deposition on nurse Smith by way of the 7 California Department of Corrections and Rehabilitation (CDCR) directly. (Id.) However, Plaintiff 8 did not subpoena nurse Smith’s deposition, and discovery closed on December 14, 2021. (Id.) 9 For the same reasoning set forth above, the Court finds good cause to extend the discovery 10 deadline for the purpose of conducting the deposition of Defendant Doe 1, lieutenant E. Burden as the 11 identity was discovered by Plaintiff on December 8, 2021. However, with regard to nurse Smith, 12 Plaintiff has had over ten months to complete depositions, yet failed to conduct any depositions of any 13 party (despite knowledge of nurse Smith’s identity since June 2020), including Defendant.1 Plaintiff 14 simply waited idly until a month before the discovery was set to expire to attempt to conduct a 15 deposition. Plaintiff offers no good explanation for waiting so long to conduct any depositions in this 16 matter. By engaging in such dilatory conduct, Plaintiff has not at all acted diligently to complete 17 discovery by the deadline set by the Court. 18 Plaintiff argues that his “diligent efforts to locate witnesses and parties central to his claims is 19 evidenced by his repeated requests for Defendant’s initial disclosure[] documents.” However, Plaintiff 20 fails to demonstrate that the initial disclosure documents provided on December 10, 2021, were 21 necessary to conduct discovery relevant to nurse Smith who was identified in the initial complaint 22 filed on June 9, 2020. (ECF No. 1, Compl. at 5.) Consequently, Plaintiff has not shown due diligence 23 in conducting discovery and has failed to demonstrate good cause as to why discovery should be 24 reopened as to nurse Smith. Accordingly, Plaintiff’s motion to reopen discovery for the limited 25 26 27 1 Defendant has stipulated to allow Plaintiff to depose Defendant past the discovery deadline, which was approved on 28 1 || purpose of taking the deposition of lieutenant E. Burden should be granted and denied as to nurse 2 || Smith. 3 Il. 4 RECOMMENDATION 5 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to amend 6 || and motion to reopen discovery be granted as to lieutenant E. Burden and denied as to nurse Smith. 7 This Findings and Recommendation will be submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 9 || days after being served with this Findings and Recommendation, that parties may file written 10 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 || Findings and Recommendation.” The parties are advised that failure to file objections within the 12 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838 13 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IS SO ORDERED. A (re 16 || Dated: _ January 19, 2022 IF 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 10