(PC) Sharpe v. Sherman ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ADAM SHARPE, Case No. 1:19-cv-00711-ADA-EPG (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 v. RECOMMENDING THAT PLAINTIFF’S MOTION FOR LEAVE TO FILE A 13 C. CRYER, et al., SECOND AMENDED COMPLAINT BE DENIED 14 Defendants. (ECF No. 149) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN (14) DAYS 17 18 19 Plaintiff Adam Sharpe is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter is before the Court on 21 Plaintiff’s motion for leave to file a proposed second amended complaint adding claims against 22 six defendants. (ECF No. 149). As explained further below, the Court will recommend that 23 Plaintiff’s motion be denied. 24 I. BACKGROUND 25 Plaintiff filed this case on May 21, 2019. (ECF No. 1). This case proceeds on Plaintiff’s 26 claims in his first amended complaint alleging that Defendants C. Cryer, J. Lewis, S. Gates, and 27 C. Nules were deliberately indifferent to his serious medical needs for specialized contact 28 lenses in violation of the Eighth Amendment. (ECF Nos. 141, 143). 1 Subject to an exception not at issue here, non-expert discovery closed on March 8, 2 2021. (ECF Nos. 32, 98). However, the Court granted Plaintiff leave to file a first amended 3 complaint on April 4, 2023, to add Defendant C. Nules based on Plaintiff’s recent discovery 4 that a signature on a healthcare appeal belonged to her rather than Defendant Lewis. (ECF No. 5 135). While the case was headed to trial, in light of the addition of Defendant Nules, the Court 6 vacated all deadlines and proceedings, e.g., the deadline for the parties to file pretrial 7 statements. (Id.). 8 Plaintiff seeks to amend his complaint to add deliberate-indifference and negligence 9 claims against six defendants: (1) Natural Vision (a medical provider); (2) Aryan Pazirandeh 10 (an optometrist); (3) B. Gerber (a scheduler for Natural Vision); (4) Khaled Tawansy (an 11 ophthalmologist); (5) Adventist Health (a medical provider); and (6) K. Emmart, a registered 12 nurse who worked with Policy and Risk Management Services, Inmate Correspondence and 13 Appeals Branch. (ECF Nos. 149, 153). In support, Plaintiff alleges that Defendants recently 14 provided him with emails between prison staff and outside medical providers, which indicate 15 that the proposed defendants played a role in delaying his medical care from being scheduled. 16 Defendants oppose leave to amend, arguing that: (1) Plaintiff unduly delayed adding 17 these proposed defendants; (2) leave to amend would be futile; and (3) they would be 18 prejudiced by the resulting delays and litigations costs if leave to amend were granted. (ECF 19 No. 156). 20 II. LEGAL STANDARDS 21 Under Rule 15(a), a party may amend a pleading once as a matter of course within 22 twenty-one days of service, or if the pleading is one to which a response is required, twenty-one 23 days after service of a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1)(B). “In all 24 other cases, a party may amend its pleading only with the opposing party’s written consent or 25 the court’s leave.” Fed. R. Civ. P. 15(a)(2). 26 Granting or denying leave to amend is in the discretion of the Court. Swanson v. United 27 States Forest Service, 87 F.3d 339, 343 (9th Cir. 1996). Leave should be “freely give[n] . . . 28 when justice so requires,” Fed. R. Civ. P. 15(a)(2). “[T]his policy is to be applied with extreme 1 liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). 2 “In exercising this discretion, a court must be guided by the underlying purpose of Rule 15 to 3 facilitate decision on the merits, rather than on the pleadings or technicalities.” United States v. 4 Webb, 655 F.2d 977, 979 (9th Cir. 1981). The nonmoving party has the burden of showing that 5 leave to amend should be denied. Pizana v. SanMedica Int’l LLC, No. 1:18-CV-00644-DAD- 6 SKO, 2022 WL 1241098, at *9 (E.D. Cal. Apr. 27, 2022). 7 “Five factors are taken into account to assess the propriety of a motion for leave to 8 amend: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and 9 whether the plaintiff has previously amended the complaint.” Desertrain v. City of L.A., 754 10 F.3d 1147, 1154 (9th Cir. 2014) (quoting Johnson v. Buckley, 356 F.3d 1067, 1077 (9th 11 Cir.2004). “[I]t is the consideration of prejudice to the opposing party that carries the greatest 12 weight.” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per 13 curiam). “A district court, however, does not abuse its discretion in denying leave to amend 14 where amendment would be futile.” Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th 15 Cir. 2002). 16 III. ANALYSIS 17 With these standards in mind, Defendants focus on the following factors: undue delay, 18 futility, and prejudice.1 19 Beginning with undue delay, Defendants note that this case has been pending for over 20 four years and that Plaintiff knew the identities of at least some of the proposed defendants long 21 ago. In support, Defendants provide an excerpt from Plaintiff’s deposition, taken December 18, 22 2020, where he generally recalled treatment with Natural Vision, Tawansy, and Pazirandeh. 23 (ECF No. 156-1, pp. 9-11).2 Moreover, they assert that their motion for summary judgment, 24 filed on May 24, 2021, identified scheduling difficulties suggesting that outside parties were at 25 fault in the delay in Plaintiff obtaining medical treatment. (See, e.g., ECF No. 65-1, p. 17 – 26 27 1 As to the other two factors, there is no indication that Plaintiff is acting in bad faith, and as noted 28 above, Plaintiff has already amended his complaint once before. 2 The Court notes that the doctors’ names are spelled differently in the deposition. 1 “Here, Defendants never denied Plaintiff any treatment. Rather, Plaintiff continuously received 2 appropriate treatment, but he experienced delays being seen by an outside provider due to 3 contracting and scheduling issues, both of which are outside Defendants’ control. Plaintiff then 4 encountered further delays in the manufacturing and shipping time for his specialty contacts. 5 Also outside Defendants’ control. This was then compounded by additional delays due to 6 Plaintiff’s contact fit issues, resulting in him going through various pairs of new contacts. 7 Defendants never denied his requests to see appropriate medical professionals, nor did they 8 deny his requests for new contacts.”). They assert that Plaintiff thereafter did not “seek the 9 identities of any of the schedulers for Natural Vision, Dr. Pazirandeh, Adventist Health, and Dr. 10 Tawansy, or seek to subpoena their records at any time during the proceedings. In fact, Plaintiff 11 opposed Defendants’ request to subpoena records from Natural Vision.” (ECF No. 156, p. 4). 12 In response, Plaintiff argues that he could not have known about his potential claims 13 until his recent discovery of the emails, which generally concern attempts by prison staff to 14 schedule medical appointments with outside medical providers. (ECF No. 158, pp. 2-5). 15 The Court recognizes that Plaintiff only recently received the emails at issue between 16 prison staff and outside medical providers. However, a hallmark of conducting discovery is the 17 requirement that a party exercise diligence. Cf. Johnson v. Mammoth Recreations, Inc., 975 18 F.2d 604, 609 (9th Cir. 1992) (discussing diligence requirement in seeking discovery to modify 19 a case schedule). The circumstances here are unlike those that led to the Court’s prior grant of 20 leave to amend, which was based, in part, on the conclusion that Plaintiff would have had no 21 reasonable way of knowing of Defendant Nules’ involvement in his healthcare appeal until her 22 illegible signature (which was featured alongside a typed signature block bearing Defendant 23 Lewis’ name) was identified by Defendant Lewis at her deposition. (ECF No. 135, pp. 4-5). 24 Here, as demonstrated by his December 18, 2020 deposition, Plaintiff knew of the existence of 25 at least some of the proposed defendants, as well as their general involvement in his healthcare, 26 based on his own interactions with them. (ECF No. 156-1). Further, Defendants’ motion for 27 summary judgment, filed on May 24, 2021, advised Plaintiff about the potential responsibility 28 of outside providers for the delay in his medical care. (See, e.g., ECF No. 65-1, p. 17). Plaintiff 1 has not contested Defendants’ assertion that he did not seek the identifies of the outside 2 providers or to subpoena their records. Thus, the Court concludes that the factor of undue delay 3 weighs against Plaintiff. 4 Defendants also argue that Plaintiff’s proposed deliberate indifference claim against 5 Emmart is futile because it is based on a single email where she follows up on Plaintiff’s 6 ophthalmology appointment status in order to complete her appeal response.3 (ECF No. 156, p. 7 6). The email at issue states as follows: “No worries, the appeal is not due for a while, but the 8 Ophthalmology is due now. I did wait a week for a reply before forwarding it last night. Maybe 9 it got lost in the daily onslaught.” (ECF No. 149, p. 57). Noting that the proposed second 10 amended complaint (ECF No. 153, p. 9) offers no facts as to Emmart’s alleged wrongdoing, 11 besides recounting this email, Defendants argue that Plaintiff cannot state a claim for deliberate 12 indifference to his serious medical needs. (ECF No. 156, p. 7). 13 Plaintiff does not contest the lack of supporting facts in his proposed second amended 14 complaint, but argues that the context of this email, when compared with others, is sufficient to 15 state a claim. (ECF No. 158, p. 7). 16 A complaint is required to contain “a short and plain statement of the claim showing 17 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 18 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[T]o maintain an Eighth Amendment 21 claim based on prison medical treatment, an inmate must show ‘deliberate indifference to 22 serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. 23 Gamble, 429 U.S. 97, 104 (1976)). This requires a plaintiff to show (1) “a ‘serious medical 24 25 3 Defendants also argued that Plaintiff’s medical negligence claims against them would be barred for failure to plead compliance with the requirement in that Government Claims Act that a person first 26 present his claim to the California Victim Compensation and Government Claims Board before he may 27 file an action for damages against a California governmental entity or employee for injury to his person. (ECF No. 156, p. 4). However, Plaintiff indicates in his reply that his claims for medical negligence are 28 not against the current defendants but only against “the outside providers and scheduler.” (ECF No. 158, p. 6). Thus, the Court will not address this argument. 1 need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further 2 significant injury or the unnecessary and wanton infliction of pain,’” and (2) that “the 3 defendant’s response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 4 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citation and internal quotations marks omitted), 5 overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en 6 banc)). “This second prong—defendant’s response to the need was deliberately indifferent—is 7 satisfied by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible 8 medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096. Delay in 9 medical treatment generally only constitutes deliberate indifference if it causes further harm. 10 See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). 11 Here, Plaintiff offers no facts—besides reciting Emmart’s email—to show that she was 12 deliberately indifferent to his serious medical needs. The lack of supporting facts is itself 13 sufficient to state a claim. Moreover, the content of the email itself, even when read in context 14 with other emails, seems to indicate an attempt to follow-up on an ophthalmology appointment 15 for Plaintiff, which would tend to disprove a deliberate indifference claim. Thus, the Court 16 concludes that leave to amend would be futile as to this claim. 17 Turning to prejudice, Defendants note that the case was about to be set for trial before 18 Defendant Nules was added, and although this case will involve further litigation now that she 19 is a defendant, the claim against her is very similar to that against Lewis. They argue that 20 adding negligence claims against five non-CDCR defendants and one CDCR defendant would 21 require extensive additional litigation in this case that has already been pending for over four 22 years. More specifically, they state as follows: 23 In addition to defending against discovery served on Nules, Defendants Cryer, Gates and Lewis will now have to defend additional discovery and will likely 24 need to re-depose Plaintiff based on the new claim and new Defendants. Defendants will be forced to answer, re-open discovery, and file a case 25 dispositive motion for the new parties. This will add additional litigation costs 26 and delay the action for a substantial period of time. This is of particular issue here because of Defendant Lewis’ uncertain health. 27 (ECF No. 156, p. 8). 28 1 Plaintiff argues that there will be no prejudice given the recent addition of Nules; that 2 most of the proposed defendants are separate from the CDCR, and thus would not be 3 represented by defense counsel so as to add to Defendants’ litigation workload; and the 4 addition of the proposed defendants may offer the existing Defendants an opportunity to 5 strengthen their own case by deflecting blame. (ECF No. 158, p. 8). 6 Upon review, the Court finds that Defendants would be prejudiced were Plaintiff 7 granted leave to amend his complaint a second time. While there will be further litigation with 8 the addition of Nules, as Defendants point out, much of that will relate to the same factual 9 issues concerning Lewis. Further, the issue of whether the appeal is sufficient to establish 10 deliberate indifference has already been addressed at screening as to Nules, and at the summary 11 judgment stage as to Lewis. (ECF Nos. 71, 79, 143). 12 Here, the proposed defendants had differing roles in the treatment process—they did not 13 process healthcare appeals; rather, the non-CDCR defendants were treatment providers (and a 14 scheduler working with a treatment provider).4 Thus, the claims against them generally involve 15 different facts and legal claims (i.e., negligence). Additionally, the Court notes that, to the 16 extent that Plaintiff attempts to bring deliberate indifference claims against the non-CDCR 17 defendants, there would be an issue as to what extent they were acting under color of state law 18 as required by § 1983. 19 Permitting the addition of six additional defendants involving different facts and legal 20 issues would substantially delay this case that has already been pending for over four years. 21 Defendants have established specific prejudice from the resulting delay and costs associated 22 with such litigation, and thus this factor weighs against granting leave to amend. 23 IV. CONCLUSION AND RECOMMENDATIONS 24 Because the factors addressed above all weigh in favor of denying Plaintiff’s motion for 25 leave to amend, IT IS RECOMMENDED that Plaintiff’s motion for leave to amend (ECF No. 26 149) be denied. 27 28 4 As to Emmart, the Court reiterates its discussion above noting that Plaintiff fails to state a deliberate indifference claim against her. 1 These findings and recommendations are submitted to the United States district judge 2 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 3 || (14) days after being served with these findings and recommendations, any party may file 4 || written objections with the Court. Such a document should be captioned “Objections to 5 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be 6 || served and filed within fourteen (14) days after service of the objections. The parties are 7 || advised that failure to file objections within the specified time may result in the waiver of rights 8 || on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 9 || Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 ul IT IS SO ORDERED. 12 ll Dated: _ October 18, 2023 □□□ hey 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28