McDaniel v. Fizer et al

Filing 52

ORDER denying 46 Plaintiff's Motion for Leave to File Second Amended Complaint. Signed by Magistrate Judge Lawrence O Anderson on 1/27/14.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tyson McDaniel,
Plaintiff,

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vs.
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Greg Fizer, et al.,
Defendants.

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No. CV-12-1697-PHX-GMS (LOA)
ORDER

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This matter is before the Court on Plaintiff’s Motion for Leave to File Second
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Amended Complaint. (Doc. 46) Defendants have not filed a response and the time to do so has
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expired. See Local Rules of Civil Procedure (“LRCiv”) 7.2(c) (providing that a response must
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be filed within fourteen days after service of the motion).
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I. Background
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Plaintiff initiated this action by filing a Civil Rights Complaint by a Prisoner on
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August 9, 2012. (Doc. 1) Upon screening the Complaint pursuant to 28 U.S.C. § 1915A(a), the
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assigned District Judge dismissed it for failure to state a claim but granted Plaintiff leave to file
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an amended complaint. (Doc. 5 at 10) On November 15, 2012, Plaintiff filed a First Amended
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Complaint. (Doc. 7) Upon screening the First Amended Complaint, the District Judge directed
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several defendants to answer Counts One and Two, but dismissed Count Three without
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prejudice. (Doc. 8 at 9) Count Three alleges prison officials violated the Eighth Amendment
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by failing to provide Plaintiff with cleaning supplies and exposing him to unsanitary conditions
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in his cell. (Id. at 5-6)

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This is Plaintiff’s fourth motion to amend the First Amended Complaint. (See Docs.

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15, 26, and 33) The Court denied the previous three because Plaintiff failed to comply with Rule

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15.1 of the Local Rules of Civil Procedure (“LRCiv”) pertaining to amended pleadings. (Docs.

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25, 29, and 44) Although the current motion appears to comply with LRCiv 15.1, the Court

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concludes it should be denied on other grounds as set forth below.

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II. Discussion

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Plaintiff seeks leave to amend the First Amended Complaint by adding factual

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allegations to his Eighth Amendment claim in Count Three. Plaintiff originally alleged in Count

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Three that his numerous requests for cleaning supplies to clean his cell were denied due to lack

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of funding and staff to distribute them. Plaintiff names several prison officials who allegedly

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knew about the lack of cleaning supplies but did nothing to remedy the problem. Plaintiff also

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alleged he had to walk through pigeon droppings to get from the recreation area back to his cell,

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causing him to track the droppings into his cell. Plaintiff claims he asked for the stairs to be

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cleaned and cleaning supplies because he was afraid of contracting MRSA (Methicillin-

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Resistant-Staphylococcus-Aureus). Plaintiff claims the prison officials were aware he was being

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exposed to unsanitary conditions and the resulting health risks, but failed to provide cleaning

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supplies or otherwise remedy the problem. Plaintiff claims they acted with deliberate

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indifference to his health and safety.

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In the instant Motion to Amend, Plaintiff asks the Court to “reconsider and grant

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Plaintiff’s amendment.” (Doc. 33 at 1) Plaintiff contends “facts have now been included which

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show that Defendants were aware of the substantial risk of the infectious disease MRSA, but

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did nothing to remedy the situation.” (Doc. 33 at 2) In addition to alleging new facts regarding

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the risk of contracting MRSA, Plaintiff also amends Count Three by alleging he was moved in

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October 2012 to a cell containing a toilet and sink that did not function properly. Plaintiff

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alleges when the toilet was flushed, contaminated water leaked out from the bottom of the toilet

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and spread out across the cell floor if not stopped. Plaintiff claims he asked to be moved on a

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number of occasions but his requests were denied. He further claims that despite prison
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officials’ knowledge of this plumbing problem, he was provided with insufficient supplies to

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keep the cell clean. Through the new allegations, Plaintiff seeks to add several new defendants

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to this action.

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A. Motion to Amend Legal Standards

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Federal Rule of Civil Procedure 15(a), which governs the amendment of civil

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complaints, provides that “leave [to amend a pleading] shall be freely given when justice so

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requires.” “In deciding whether justice requires granting leave to amend, factors to be

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considered include the presence or absence of undue delay, bad faith, dilatory motive, repeated

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failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and

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futility of the proposed amendment.” Moore v. Kayport Package Express, Inc., 885 F.2d 531,

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538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A district court need not

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prolong litigation by permitting further amendment where such amendment would be futile.

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Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). Granting or denying a

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motion to amend is a matter within the court’s discretion. See, e.g., Ventress v. Japan Airlines,

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603 F.3d 676, 680 (9th Cir. 2010); Chappel v. Laboratory Corp. of Amer., 232 F.3d 719, 725

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(9th Cir. 2000). “[A] district court’s discretion over amendments is especially broad ‘where the

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court has already given a plaintiff one or more opportunities to amend his complaint . . . .’”

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DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 n. 3 (9th Cir. 1987) (quoting Mir v.

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Fosburg, 646 F.2d 342 (9th Cir. 1980)).

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B. Application and Analysis

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Here, upon consideration of the above factors, the Court finds that leave to amend

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should be denied. Although there is no evidence of bad faith on Plaintiff’s part, two other

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significant factors weigh against granting leave to amend.

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First, the District Judge previously granted Plaintiff leave to amend after his original

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Complaint failed to state a claim. (See Doc. 5) Plaintiff was given thirty days to amend the

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Complaint to cure the deficiencies identified in the screening order. (Id.) The Plaintiff then

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timely filed his First Amended Complaint, pursuant to which the District Judge ordered service

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upon, and an Answer from, six different defendants. More than seven months after the January
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24, 2013 screening order was issued, much of which the United States Marshals Service spent

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effecting service of process on the defendants, the final two defendants filed their answers.

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(Doc. 36) The undersigned Magistrate Judge then issued a scheduling and discovery order on

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September 4, 2013, and discovery is ongoing. Moreover, as noted above, Plaintiff throughout

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this period tried unsuccessfully to amend the First Amended Complaint on three separate

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occasions.

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This action is nearly a year-and-a-half old. Granting leave to file another amended

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complaint would essentially start the case over, at least with respect to those defendants Plaintiff

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seeks to add in his proposed Second Amended Complaint; add more delay and expense in

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reaching the merits of Plaintiff’s claims; and render it less likely the Court and parties could

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substantially meet the congressional recommended goal established in the Civil Justice Reform

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Act of a trial in this case eighteen months after the Complaint was filed, see 28 U.S.C. §

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473(a)(2); and is inconsistent with Rule 1, Fed.R.Civ.P.,(“These rules . . . shall be construed and

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administered to secure the just, speedy, and inexpensive determination of every action.”)

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(emphasis added). For these reasons, the Court finds Plaintiff’s prior amendment, and his

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numerous subsequent unsuccessful attempts to further amend, weigh against granting leave to

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amend at this stage.

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Second, the Court finds Plaintiff’s proposed amendments would be futile. An Eighth

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Amendment claim requires a sufficiently culpable state of mind by the Defendants, known as

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“deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference

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is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety. Id.

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at 835. To state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the

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alleged constitutional deprivation must be, objectively, “sufficiently serious”; the official’s act

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or omission must result in the denial of “the minimal civilized measure of life’s necessities.”

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Id. at 834. Second, the prison official must have a “sufficiently culpable state of mind,” i.e., he

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must act with deliberate indifference to inmate health or safety. Id. In defining “deliberate

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indifference” in this context, the Supreme Court has imposed a subjective test: “the official must

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both be aware of facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and he must also draw the inference.” Id. at 837 (emphasis added).

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In the screening order for the First Amended Complaint, the District Judge, in

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dismissing Plaintiff’s Eighth Amendment claim in Count Three, found “Plaintiff’s allegations

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do not support a claim that any of the Defendants acted with deliberate indifference to

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Plaintiff’s health and safety.” (Doc. 8 at 8) The Judge further explained, “Moreover, Plaintiff

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suffered no harm from the lack of cleaning supplies or the failure to clean pigeon droppings.”

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(Id.)

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In the proposed Second Amended Complaint, Plaintiff adds new facts regarding the

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defendants alleged awareness of the risk of contracting MRSA. Plaintiff explains that a video

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notification addressing the potential risk of contracting MRSA was repeatedly played on a

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prison televison channel. Plaintiff explains that the notification “warned that MRSA can be

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contracted by merely touching anything contaminated with the bacteria” and “cautioned

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vigilance with self inspections for cuts and scrapes or any sign of infection.” The notification

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further advised frequent hand washing. Plaintiff contends the video shows the defendants’

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awareness of the risk of harm.

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Plaintiff’s new allegations regarding his alleged exposure to MRSA, in conjunction

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with the original allegations, fail to sufficiently raise a claim that the defendants acted with

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deliberate indifference to a substantial risk of serious harm to Plaintiff’s health or safety. To the

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contrary, the allegations show prison officials were aware of the potential risk of contracting

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MRSA and advised Plaintiff and other inmates how to minimize the risks. Plaintiff’s alleged

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fear of contracting MRSA by walking over dried pigeon droppings and possibly tracking the

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droppings into his cell is unsubstantiated. He fails to allege facts to show these circumstances

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present a substantial risk of serious harm. Even if he wasn’t regularly provided with cleaning

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supplies to address this issue, he had the ability to wash the bottoms of his shoes each time he

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returned to his cell.

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Plaintiff’s other new allegations in Count Three pertain to his movement to a different

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cell in late October 2012. Plaintiff alleges he was moved to a cell in which the toilet, when

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flushed, leaked from the bottom and spread contaminated water on the floor of his cell. He
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further alleges the sink did not drain properly. Plaintiff explains that an officer brought him a

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spray bottle of cleaning solution soon after he was moved into the cell. Plaintiff complains he

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had to use his own towels to clean, but acknowledges he could slow the leak by wrapping a

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towel around the base of the toilet. Plaintiff alleges the defendants were all aware of the

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unsanitary conditions in his cell but failed to take any action when Plaintiff requested cleaning

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supplies or to be moved. The last time Plaintiff alleges the defendants denied his request to

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move was on January 4, 2013. Plaintiff does not even allege he is remains in that same cell and

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has not been moved.

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Plaintiff’s new allegations regarding his placement in a cell with a toilet and sink that

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did not function properly fail to sufficiently raise a claim that the defendants acted with

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deliberate indifference to a substantial risk of serious harm to Plaintiff’s health or safety.

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Plaintiff acknowledges the defendants provided him with cleaning solution shortly after he

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moved to the new cell, thus reducing any risk of harm from unsanitary conditions. Plaintiff

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further acknowledges he was able to slow any leaks by wrapping a towel around the base of the

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toilet. While the Court recognizes the unpleasantness and inconvenience Plaintiff has

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experienced under these circumstances, the defendants’ failure to promptly move him to a

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different cell did not rise to the level of deliberate indifference to a substantial risk of serious

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harm to Plaintiff’s health or safety.

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Because Plaintiff’s proposed amended Count Three fails to sufficiently raise an Eighth

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Amendment claim for deliberate indifference to a substantial risk of serious harm to Plaintiff’s

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health or safety, granting Plaintiff leave to amend to add that claim would be futile. For these

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reasons, Plaintiff’s Motion to Amend will be denied.

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IT IS ORDERED that Plaintiff’s Motion for Leave to File Second Amended
Complaint, doc.46, is DENIED.
DATED this 27th day of January, 2014.

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