Barker v. Baker ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JAMES BARKER, Case No. 3:19-cv-00158-MMD-WGC 7 Plaintiff, ORDER v. 8 BAKER, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff James Barker, currently incarcerated and in the custody of the 13 Nevada Department of Corrections (“NDOC”), filed a first amended complaint under 42 14 U.S.C. § 1983. (ECF No. 10-1 (“FAC”).) The Court screened the FAC and allowed Barker 15 to proceed on his Eighth Amendment cruel and unusual punishment and Fourteenth 16 Amendment equal protection claims against Defendants Smith and Malay, based on 17 Defendants alleged opening of Barker’s cell door while he was using the restroom. (ECF 18 No. 16 at 4-6.) On February 16, 2021, Barker filed a motion for leave to file a second 19 amended complaint (ECF No. 22 (“Motion”)) and attached his proposed second amended 20 complaint (ECF No. 22-1 (“SAC”)). 21 Before the Court is the Report and Recommendation (ECF No. 27 (“R&R”)) of 22 United States Magistrate Judge William G. Cobb. The R&R recommends the Court deny 23 Barker’s Motion and that this action proceed on the FAC as outlined in the Court’s FAC 24 screening order (ECF No. 16). Barker timely filed his objection (ECF No. 28 (“Objection”)) 25 to the R&R, and Defendants did not file a response. Because the Court agrees with Judge 26 Cobb and as further explained below, the Court overrules Barker’s Objection and will adopt 27 the R&R in full. 28 /// 2 The Court incorporates by reference Judge Cobb’s recitation of the factual 3 background provided in the R&R, which the Court adopts here. (ECF No. 27 at 1-3.) 4 III. LEGAL STANDARD 5 A. Review of the Magistrate Judge’s Recommendation 6 This Court “may accept, reject, or modify, in whole or in part, the findings or 7 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 8 timely objects to a magistrate judge’s report and recommendation, then the Court is 9 required to “make a de novo determination of those portions of the [report and 10 recommendation] to which objection is made.” Id. The Court’s review is thus de novo 11 because Barker filed his Objection. (ECF No. 28.) 12 IV. DISCUSSION 13 Following a de novo review of the R&R and other records in this case, the Court 14 finds good cause to accept and adopt Judge Cobb’s R&R. 15 Judge Cobb recommends Barker’s Motion be denied as it was filed outside of the 16 scheduling order deadline and Barker failed to provide good cause to grant leave to 17 amend. (ECF No. 27 at 5.) Judge Cobb further recommends that the Motion be denied as 18 amendment would be futile. (Id.) Barker counters that amendment is not futile because 19 defendant Alredd1 knew that Barker was using the bathroom. (ECF No. 28 at 2-3.) Barker 20 additionally counters that defendant Bennett2 searched him as a response to Barker filing 21 grievances. (Id.) The Court agrees with Judge Cobb. 22 The scheduling order in this case was entered on November 24, 2020 and the 23 deadline to add parties or claims was January 22, 2021. (ECF No. 20 at 1-2.) Barker filed 24 his Motion on February 16, 2021—nearly a month after the deadline—seeking leave to file 25 his second amended complaint to add Alredd and Bennett as defendants. Because Barker 26 is now seeking to add parties after the Court has entered a scheduling order, Federal Rule 27 1Alredd was previously dismissed from this action. (See ECF No. 16.) 28 2Bennett was previously dismissed from this action. (See ECF No. 16.) 1 || of Civil Procedure 16(b)(4)’s “good cause” standard for modifying a scheduling order 2 || applies, not Rule 15(a)(2)’s more lenient amendment standard that Barker cites in his 3 || Objection. The “good cause” standard of Rule 16(b) “primarily considers the diligence of 4 || the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 5 || 609 (9th Cir. 1992). While the Court may consider prejudice to the nonmoving party as 6 || additional reasons to deny a motion, “the focus of the inquiry is upon the moving party’s 7 || reasons for seeking modification. /d. Here, Barker does not provide an explanation, let 8 || alone good cause, but merely states that he is seeking to give “a more complete picture 9 || as to what occurred.” (ECF No. 22 at 1.) The Court, however, finds that this fails to meet 10 || Fed. R. Civ. P. 16(b)(4)’s good cause standard. 11 Moreover, Barker’s SAC alleges that Alredd repeatedly opened Barker's cell door 12 || and forced it open. However, the SAC—similar to the FAC—fails to allege that Alredd 13 || knew Barker was using the restroom at the time or that Alredd acted with intent to cause 14 || Barker psychological damage. Similarly, the SAC also fails to sufficiently allege facts that 15 || Bennett violated Barker’s rights under the Eighth Amendment, Fourteenth Amendment, or 16 || that Bennett engaged in retaliation. Barker’s allegations in the SAC against Bennett are 17 || vague and conclusory at best. Accordingly, Barker's Objection is overruled. The Court 18 || therefore agrees with Judge Cobb that Barker's Motion should be denied and will adopt 19 || the R&R in its entirety. 20 || V. CONCLUSION 21 It is therefore ordered that the Report and Recommendation of Magistrate Judge 22 || William G. Cobb (ECF No. 27) is accepted and adopted in full. 23 It is further ordered that Plaintiff Barker’s motion for leave to file a second amended 24 || complaint (ECF No. 22) is denied. 25 It is further ordered that this action proceed in accordance with the first anendment 26 || complaint screen order (ECF No. 16). _——_ 27 DATED THIS 20" Day of May 2021. A ( _ 28 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE