Taylor v. Comm'r of Cal. Dep't of Corrs. & Rehab.

• Decision Date: 19 January 2022
• Docket Number: 1:20-cv-00798-JLT-SAB (PC)
• Court: U.S. District Court — Eastern District of California
• Parties: PRESTON TAYLOR, Plaintiff, v. COMMISSIONER OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

PRESTON TAYLOR, Plaintiff, v. COMMISSIONER OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

No. 1:20-cv-00798-JLT-SAB (PC)

United States District Court, E.D. California

January 19, 2022

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION TO AMEND THE COMPLAINT AND MOTION TO REOPEN DISCOVERY (ECF NOS. 44, 50)

Plaintiff Preston Taylor is proceeding in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Currently before the Court is Plaintiff's motion to amend the complaint and motion to reopen discovery, filed December 10 2021 and December 22, 2021, respectively. Defendant filed an opposition December 24, 2021 and January 5, 2022. Defendant did not file a reply.

I. PROCEDURAL HISTORY

This case is proceeding against Defendant Turner for excessive force and against Defendant John Doe for deliberate indifference to a serious medical need in violation of the Eighth Amendment. Defendant P. Turner filed an answer to the complaint on December 14, 2020.

After the case did not settle at the settlement conference, the Court issued the discovery and scheduling order on February 19, 2021.

On August 18, 2021, the Court approved the parties stipulation to extend the discovery and dispositive motion deadlines. (ECF No. 36.)

On October 19, 2021, the Court approved the parties stipulation to extend the deadline to amend the pleadings. (ECF No. 40.)

On October 28, 2021, this Court issued an order re clarification. (ECF No. 41.)

On November 19, 2021, Defendant filed a request for clarification of the Court's October 28, 2021 order. (ECF No. 42.)

On November 29, 2021, a minute order was issued stating, “ ‘The order of clarification (ECF No. 41) was not intended to stay any deadlines in this matter. It merely advised the parties that they "should expect that no matter in [this] case[] will be addressed by a district judge.' The order of clarification also indicates that the assigned magistrate judge may ‘elect to stay discovery and other proceedings in [this case] entirely or may allow proceedings that do not require the attention of a district judge to continue to move forward' In the absence of action by the assigned magistrate judge affirmatively staying discovery, discovery deadlines remain in place signed by District Judge Dale A. Drozd on November 29, 2021.” (ECF No. 43.)

On December 10, 2021, Plaintiff filed a motion to amend the complaint. (ECF No. 44.) Defendant filed an opposition on December 24, 2021. (ECF No. 51.) Plaintiff did not file a reply.

On December 22, 2021, Plaintiff filed a motion to reopen discovery and set a hearing date of January 5, 2022. (ECF No 50.) On December 28, 2021, the Court reset the hearing to January 12, 2022. (ECF No. 52.) Defendant filed an opposition on January 5, 2022. (ECF No. 53.) Plaintiff did not file a reply.

II. DISCUSSION

A. Motion to Amend

The deadline to amend the pleadings passed on November 1, 2021. As Plaintiff's request to amend is filed after the expiration of the scheduling order for amendment, the Court must apply the standard for amending the scheduling order under Federal Rule of Civil Procedure 16, rather than the more liberal amendment standard under Rule 15. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000) (district court correctly addressed motion for leave to amend under Rule 16 because it had issued a pretrial scheduling order that established a timetable for amending the pleadings and the motion was filed after the deadline expired).

Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P. 16(d). Modification of a scheduling order requires a showing of good cause, Fed.R.Civ.P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling order must generally show that even with the exercise of due diligence, they cannot meet the requirement of that order. Id. The court may also consider the prejudice to the party opposing the modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the court's deadline date for discovery by demonstrating good cause for allowing further discovery. Fed.R.Civ.P. 16(b)(4).

“Good cause may be found to exist where the moving party shows that it diligently assisted the court with creating a workable scheduling order, that it is unable to comply with the scheduling order's deadlines due to matters that could not have reasonably been foreseen at the time of the issuance of the scheduling order, and that it was diligent in seeking an amendment once it became apparent that the party could not comply with the scheduling order.” Kuschner Nationwide Credit, Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009).

Plaintiff seeks leave to amend the complaint to replace Doe 1 as lieutenant E. Burden and to add nurse Smith as a Defendant and claim for negligence. Defendant opposes Plaintiff's amendment on the ground that Plaintiff failed to act with due diligence and is arguably acting in bad faith.

Plaintiff submits that counsel determined nurse Smith should be added as a defendant given her role in Plaintiff's medical treatment, and a claim for negligence is viable on the same facts as set forth in the operative complaint. In addition, on December 8, 2021, during defense counsel's questioning at Plaintiff's deposition, Plaintiff determined the identify of Doe 1 as lieutenant E. Burden. Plaintiff argues good cause exists to replace Doe 1 as lieutenant E. Burden, given Plaintiff recently discovered the identity at his deposition on December 8, 2021, and good cause exists to add nurse Smith as a Defendant and add a claim of negligence, because Plaintiff inadvertently failed to name nurse Smith and excluded a negligence claim as a pro se litigant.

Plaintiff's motion to amend should be denied in part and granted in part. Defendant initially agreed to a 60-day continuance, to October 18, 2021, to allow Plaintiff to amend the complaint, yet Plaintiff failed to do so. (Jameson Decl. ¶¶ 3, 5.) On the eve of October 18, 2021, at Plaintiff's request, Defendant informed Plaintiff that he would not oppose extending the deadline to amend the pleadings again, to November 1, 2021. (Id. ¶¶ 5, 7.) However, despite being granted an additional fourteen days to amend the pleadings, Plaintiff failed to fail an amended complaint by November 1, 2021. (Id. ¶ 10.) Rather, on November 1, 2021 at 12:00 p.m., Plaintiff emailed a copy of the proposed amended complaint to Defendant and requested a stipulation. (Id.) Defendant declined to stipulate to the amendment because there was insufficient time to review the proposed amended complaint, and because Plaintiff added new causes of action and new Defendants that had not been previously discussed. (Id.)

Plaintiff has failed to act diligently in seeking to amend the complaint to add nurse Smith and a claim of negligence. Despite the November 1, 2021 amendment deadline, Plaintiff did not seek to amend the complaint until December 10, 2021. Plaintiff was well aware (or should have been aware) of the allegations against nurse Smith and a claim for negligence based on the allegations in the original complaint filed on June 9, 2020. (ECF No. 1.) Therein, Plaintiff alleged, in pertinent part,

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 to receive proper examination, being shot in the head, a severe injury.

I was left just sitting with a major migraine, dizzy and a swollen head. I asked the nurse why am I just sitting here?

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 misconduct of the John Doe C/O Superior of a severe blunt force trauma head injury.

(ECF No. 1, Compl. at 5.)

Based on Plaintiff's allegations, it is clear that he was aware of the identify and actions of nurse Smith and any potential negligence claim well before the November 1, 2021 amendment deadline. The fact that Plaintiff believed (albeit mistakenly) that the Court's October 28, 2021 stayed the action does not assist him as he had several months prior to the November 1, 2021 deadline to file a motion to amend but failed to do so.

The situation is different with regard to Defendant lieutenant E. Burden. The Court's screening order found that Plaintiff stated a cognizable claim against Defendant P. Turner for excessive force and against Defendant John Doe for deliberate indifference to a serious medical need in violation of the Eighth Amendment. (ECF No. 16.) Plaintiff submits that he did not discover the identity of the Doe Defendant until Plaintiff's deposition on December 8, 2021, and Defendant does not dispute this fact. Plaintiff filed the instant motion to amend on December 10, 2021, just two days after obtaining knowledge of the Doe Defendant. Therefore, the Court finds good cause under Federal Rule of Civil Procedure 16(b).

Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party's pleading once as a matter of course twenty-one days after serving, or if a response was filed within twenty-one days after service of the response. Fed.R.Civ.P. 15(a)(1). Otherwise, a party may amend only by...