Palmer et al v. State of Arizona et al

Filing 147

ORDER granting 136 Motion to Amend/Correct. Plaintiffs motion at docket 136 to amend the scheduling order and for leave to file a second amended complaint is GRANTED. The second amended complaint shall be filed within three (3) days from the filing of this order. Signed by Judge John W Sedwick on 8/1/11.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

GLENDA PALMER, et al.,
Plaintiffs,
vs.
STATE OF ARIZONA, et al.,
Defendants.

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2:09-cv-01791 JWS
ORDER AND OPINION
[Re: Motion at Docket 136]

I. MOTION PRESENTED
At docket 136, plaintiffs Glenda Palmer, et al., move to amend the scheduling
order filed at docket 66 and for leave to file a second amended complaint. At
docket 141, defendants State of Arizona and Preston Gamblin oppose the motion.
Plaintiffs reply at docket 144. Oral argument was not requested, and it would not assist
the court.
II. BACKGROUND
On July 31, 2009, plaintiffs filed a complaint in Superior Court for the State of
Arizona, alleging federal civil rights claims and state tort claims against defendants
State of Arizona, Arizona Department of Corrections (“ADOC”); Dora Schriro, director of
ADOC; Greg Fizer, warden of Arizona State Prison Complex (“ASPC”) Tucson; Robert

Stewart, warden of ASPC Eyman; Robin Smithson, executive staff assistant to Robert
Stewart; Tara Diaz, deputy warden of ASPC Eyman; Preston Gamblin, corrections
officer at ASPC Eyman; Herb Haley, protective segregation administrator; Tony
Valenzuela, lieutenant at ASPC Tucson; John Doe Bittman, Mark Versluis, and other
defendants. All of plaintiffs’ claims are related to the stabbing death of Timothy Lucero
on September 4, 2008, while he was incarcerated at ASPC Tucson - Cimarron Unit.
On October 30, 2009, plaintiffs filed a first amended complaint removing ADOC
as a party, dropping their claim of negligent infliction of emotional distress, and adding a
wrongful death claim. At docket 35, defendants State of Arizona, ADOC, Robin
Smithson, Preston Gamblin, Herb Haley, Tony Valenzuela, Mark Versluis, Tara Diaz,
and Christopher Bittman moved to dismiss most of plaintiffs’ claims pursuant to Federal
Rule of Civil Procedure 12(b)(6). At docket 47, defendant Dora Schriro moved to
dismiss all of plaintiffs’ claims against her. By order dated April 5, 2010, the court
granted defendant Schriro’s motion to dismiss and granted in part and denied in part
defendants’ motion to dismiss at docket 35.1 The following claims remain for resolution
following the court’s order: plaintiffs’ Eighth Amendment claims under 42 U.S.C. § 1983
against defendants Stewart, Fizer, and Gamblin, recklessness and gross negligence
claim against defendant State of Arizona, and prayer for punitive damages.
Defendants Fizer and Stewart subsequently filed Rule 12(b)(6) motions to
dismiss plaintiffs’ claims against them.2 By order dated August 9, 2010, the court

1

Doc. 53.

2

Docs. 54 and 56.

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granted defendant Fizer’s motion to dismiss and denied defendant Stewart’s motion to
dismiss on the grounds that the facts alleged by plaintiffs, accepted as true and
construed in the light most favorable to plaintiffs, support an Eighth Amendment
violation against Stewart based on a failure to prevent harm.3
On November 3, 2010, the court entered a scheduling and planning order
pursuant to Federal Rule of Civil Procedure 16(b), which stated in part that motions to
add other parties or amend the pleadings must be filed within 45 days from the date of
the Rule 16(b) order, and that thereafter “parties may be added and/or pleadings
amended only upon leave of court and for good cause shown.”4 Based on subsequent
motion practice, the court extended the dispositive motions deadlines to 30 days from
the date the court rules on plaintiffs’ motion for leave to file a second amended
complaint, and also extended several discovery deadlines.5
On June 20, 2011, plaintiffs filed the underlying motion to amend the Rule 16(b)
scheduling order and for leave to file a second amended complaint to add Ronald
Carlson as a defendant to their claim under 42 U.S.C. § 1983. Defendants State of
Arizona and Preston Gamblin oppose the motion.
III. APPLICABLE LEGAL STANDARD
Once the district court has filed a scheduling order pursuant to Federal Rule of
Civil Procedure Rule 16(b) establishing a timetable for amending pleadings, the

3

Doc. 62.

4

Doc. 66.

5

Docs. 132 and 143.

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standards of Rule16(b) control.6 Pursuant to Rule 16(b), a scheduling order entered by
the court “shall not be modified except upon a showing of good cause and by leave of
the district judge.” “Unlike Rule 15(a)’s liberal amendment policy which focuses on the
bad faith of the party seeking to interpose an amendment and the prejudice to the
opposing party, Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of
the party seeking the amendment.”7 “If the party seeking the amendment was not
diligent, the inquiry should end” and the motion should not be granted.8 If good cause if
shown, the party must demonstrate that amendment was proper under Rule 15.9 Under
Rule 15(a), “leave to amend should be granted unless amendment would cause
prejudice to the opposing party, is sought in bad faith, is futile, or creates undue
delay.”10
IV. DISCUSSION
Plaintiffs seek leave to amend the Rule 16(b) scheduling order so they can file a
second amended complaint adding Ronald Carlson as a defendant to their claim under
42 U.S.C. § 1983. Plaintiffs’ proposed second amended complaint alleges in part that
Ronald Carlson is Preston Gamblin’s direct supervisor, Gamblin testified in his April
2011 deposition that he reported the threat against Mr. Lucero’s life to Carlson, Carlson

6

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-607 (9th Cir. 1992).

7

Johnson, 975 F.2d at 609.

8

Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002)
(internal quotation and citation omitted).
9

Johnson, 975 F.2d at 608 (citing Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C.

1987)).
10

Id. at 607.

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ignored the threat and failed to timely submit an Information Report (“IR”) outlining the
threat to ASPC Tucson, and Carlson failed to initiate a protective segregation process.
Defendants oppose the motion to add Carlson as a defendant on the grounds
that plaintiffs have not shown excusable neglect for missing the deadline set in the
Rule 16(b) scheduling order, have failed to show good cause for the amendment, and
the proposed amendment would be futile because the claim against Carlson is time
barred, and Carlson is not liable under § 1983.
Contrary to defendants’ suggestion, plaintiffs are not required to show excusable
neglect for modifying the Rule 16(b) order. Rather, Rule 16(b)’s good cause standard
primarily considers the diligence of the party seeking the amendment. Plaintiffs contend
that they did not learn of Mr. Carlson’s identity or his failure to start a protective
segregation process for Mr. Lucero until Preston Gamblin’s deposition on April 12,
2011. Plaintiffs then reviewed “extensive records” to verify that Mr. Carlson had been
mentioned in the records and found that Carlson was listed on an IR that Mr. Gamblin
submitted concerning the threat to Mr. Lucero’s life and that Mr. Carlson was
interviewed in October 2008 regarding Lucero’s death. Plaintiffs further contend that
they “did not learn the significance of an IR (where Sgt. Carlson was named) until the
depositions of ADOC personnel in the spring of 2011 as Plaintiffs were seeking a
[protective segregation] report.”11 After verifying Carlson’s involvement, plaintiffs filed
the underlying motion to amend the Rule 16(b) scheduling order and for leave to file a
second amended complaint on June 20, 2011.

11

Doc. 144 at p. 6.

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Although plaintiffs moved to modify the scheduling order to file an amended
complaint six months after the deadline set in the scheduling order, it appears that
during those six months plaintiffs worked diligently to set depositions and review the
investigative and administrative files. Because plaintiffs moved to amend the
scheduling order and for leave to file an amended complaint shortly after learning of
Mr. Carlson’s identity and role, the court finds that plaintiffs have shown diligence in
complying with the dates set by the court’s Rule 16(b) scheduling order and have
demonstrated good cause for modifying the scheduling order.
Because plaintiffs have shown good cause under Rule 16(b), the court next
considers whether amendment is proper under Rule 15(a). Under Rule 15(a), “leave to
amend should be granted unless amendment would cause prejudice to the opposing
party, is sought in bad faith, is futile, or creates undue delay.”12 Defendants contend
that the proposed amendment would be futile because the § 1983 claim against
Mr. Carlson is time barred, and Mr. Carlson is not liable under § 1983. Defendants
specifically argue that the § 1983 claim against Carlson is barred by the applicable twoyear statute of limitations unless the claim relates back to the original complaint under
Federal Rule of Civil Procedure 15(c).13 The Ninth Circuit has affirmed that state law,
“not the Federal Rules of Civil Procedure, governs whether in a section 1983 action an
amended complaint relates back to the filing of the original complaint.”14 Arizona Rule

12

Id. at 607.

13

Arizona’s two-year statute of limitations for personal injury cases applies to plaintiffs’
Section 1983 claims. Krug v. Imbordino, 896 F.2d 395, 396-397 (9th Cir. 1990).
14

Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989).

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of Civil Procedure 15(c) provides that in certain circumstances an amended complaint
“relates back to the date of the original pleading” for statute of limitations purposes. The
purpose of Arizona Rule of Civil Procedure 15(c) is “to ameliorate the effect of the
statute of limitations.”15
Rule 15(c) permits this amelioration upon three conditions: (1) the claim in the
amended pleading must arise “out of the conduct, transaction, or occurrence”
alleged in the original complaint; (2) “within the period provided by law for
commencing the action against the party to be brought in by amendment, plus
the period provided by Rule 4(i) for service of the summons and complaint,” the
new defendant must have “received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the merits”; and
(3) during the same period, the new defendant either “knew or should have
known that, but for a mistake concerning the identity of the proper party,” the new
defendant would have been named in the original complaint.16
The first requirement is not at issue here. The proposed second amended
complaint plainly involves the same occurrence set forth in the original complaint.
Second, the plaintiffs must show that Mr. Carlson received notice of the filing of the
action “within the original limitation period plus the time allowed for service of process”
so that he “will not be prejudiced in maintaining a defense on the merits.”17 “Under
certain circumstances, notice and knowledge may be imputed from an original
defendant to a new defendant,” such as “when there is an ‘identity of interest’ between
the two.”18 “Notice may also be imputed when the new and original defendants share

15

Tyman v. Hintz Concrete, Inc., 148 P.3d 1146, 1147 (Ariz. 2006) (internal citation

omitted).
16

Tyman, 148 P.3d at 1147-48 (internal citations omitted).

17

Pargman v. Vickers, 96 P.3d 571, 576 (Ariz. App. 2005).

18

Pargman, 96 P.3d at 577.

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the same attorney.”19 Here, most of the original defendants were ADOC employees and
were represented by the Office of the Attorney General. As Mr. Carlson is also an
ADOC employee, is the direct supervisor of an original defendant, and will share the
same attorney, notice may be imputed.
The third requirement of Rule 15(c) is satisfied when, during the specified time
“within the original limitation period plus the time allowed for service of process,” the
new defendant “knew or should have known that, but for a mistake concerning the
identity of the proper party,” he would have been named in the original complaint.20
“This knowledge requirement ‘insures that the new defendant knew its joinder was a
distinct possibility.”21
“To decide whether a Rule 15(c)(2) ‘mistake’ has occurred, the court must
determine ‘whether, in a counterfactual error-free world, the action would have been
brought against the proper party.’”22 Consequently, the court looks at what the plaintiffs
knew, or thought they knew, at the time of the original pleading.23 Plaintiffs contend that
they made a mistake cognizable under Rule 15(c)(2) because they were mistakenly
looking for a protective segregation report instead of an IR and even if they had known
to look for an IR, the IR at issue was not included in the files obtained by plaintiffs at the
time the complaint was filed. The court is persuaded that Mr. Carlson “truly was omitted
19

Id.

20

Tyman, 148 P.3d at 1148 (quoting Ariz. R. Civ. P. 15(c)(2)).

21

Pargman, 96 P.3d at 578.

22

Tyman, 148 P.3d at 1149 (quoting Leonard v. Parry, 219 F.3d 25, 29 (1st Cir. 2000)).

23

Id.

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because of a ‘mistake concerning the identity of the proper party.’”24 Moreover, given
that Mr. Carlson was interviewed regarding the death of Mr. Lucero in October 2008 and
was defendant Gamblin’s direct supervisor at the time this action was instituted,
Mr. Carlson knew or should have known that his joinder was a distinct possibility and
that, but for a mistake concerning identity of the proper party, he would have been
named in the original complaint.
Finally, defendants argue that plaintiffs’ proposed § 1983 claim against
Mr. Carlson is futile because violation of ADOC policy is not a sufficient basis for a
§ 1983 claim. Defendants’ argument is unavailing because it distorts plaintiffs’
proposed claim against Mr. Carlson. The proposed second amended complaint alleges
that Mr. Carlson violated Mr. Lucero’s Eighth Amendment rights by “failing to supervise
Defendant Gamblin, failing to isolate Timothy despite the known risk to his safety, failing
to submit [IR] number 08A0801435 timely to ASPC Tucson, failing to initiate the
protective segregation process, and failing to instruct Gamblin to re-interview Lucero for
protective segregation (DI-67).”25 Because plaintiffs have demonstrated good cause for
amending the scheduling order and shown that the proposed second amended
complaint is proper under Rule 15(a), the court will grant plaintiffs’ motion.

24

Id.

25

Doc. 136-1 at p. 15.

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V. CONCLUSION
For the reasons set out above, plaintiffs’ motion at docket 136 to amend the
scheduling order and for leave to file a second amended complaint is GRANTED. The
second amended complaint shall be filed within three (3) days from the filing of this
order.
DATED this 1st day of August 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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