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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tyson McDaniel, Plaintiff, 10 11 vs. 12 13 14 Greg Fizer, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-12-1697-PHX-GMS (LOA) ORDER 15 This matter is before the Court on Plaintiff’s Motion for Leave to File Second 16 Amended Complaint. (Doc. 46) Defendants have not filed a response and the time to do so has 17 expired. See Local Rules of Civil Procedure (“LRCiv”) 7.2(c) (providing that a response must 18 be filed within fourteen days after service of the motion). 19 I. Background 20 Plaintiff initiated this action by filing a Civil Rights Complaint by a Prisoner on 21 August 9, 2012. (Doc. 1) Upon screening the Complaint pursuant to 28 U.S.C. § 1915A(a), the 22 assigned District Judge dismissed it for failure to state a claim but granted Plaintiff leave to file 23 an amended complaint. (Doc. 5 at 10) On November 15, 2012, Plaintiff filed a First Amended 24 Complaint. (Doc. 7) Upon screening the First Amended Complaint, the District Judge directed 25 several defendants to answer Counts One and Two, but dismissed Count Three without 26 prejudice. (Doc. 8 at 9) Count Three alleges prison officials violated the Eighth Amendment 27 by failing to provide Plaintiff with cleaning supplies and exposing him to unsanitary conditions 28 1 in his cell. (Id. at 5-6) 2 This is Plaintiff’s fourth motion to amend the First Amended Complaint. (See Docs. 3 15, 26, and 33) The Court denied the previous three because Plaintiff failed to comply with Rule 4 15.1 of the Local Rules of Civil Procedure (“LRCiv”) pertaining to amended pleadings. (Docs. 5 25, 29, and 44) Although the current motion appears to comply with LRCiv 15.1, the Court 6 concludes it should be denied on other grounds as set forth below. 7 II. Discussion 8 Plaintiff seeks leave to amend the First Amended Complaint by adding factual 9 allegations to his Eighth Amendment claim in Count Three. Plaintiff originally alleged in Count 10 Three that his numerous requests for cleaning supplies to clean his cell were denied due to lack 11 of funding and staff to distribute them. Plaintiff names several prison officials who allegedly 12 knew about the lack of cleaning supplies but did nothing to remedy the problem. Plaintiff also 13 alleged he had to walk through pigeon droppings to get from the recreation area back to his cell, 14 causing him to track the droppings into his cell. Plaintiff claims he asked for the stairs to be 15 cleaned and cleaning supplies because he was afraid of contracting MRSA (Methicillin- 16 Resistant-Staphylococcus-Aureus). Plaintiff claims the prison officials were aware he was being 17 exposed to unsanitary conditions and the resulting health risks, but failed to provide cleaning 18 supplies or otherwise remedy the problem. Plaintiff claims they acted with deliberate 19 indifference to his health and safety. 20 In the instant Motion to Amend, Plaintiff asks the Court to “reconsider and grant 21 Plaintiff’s amendment.” (Doc. 33 at 1) Plaintiff contends “facts have now been included which 22 show that Defendants were aware of the substantial risk of the infectious disease MRSA, but 23 did nothing to remedy the situation.” (Doc. 33 at 2) In addition to alleging new facts regarding 24 the risk of contracting MRSA, Plaintiff also amends Count Three by alleging he was moved in 25 October 2012 to a cell containing a toilet and sink that did not function properly. Plaintiff 26 alleges when the toilet was flushed, contaminated water leaked out from the bottom of the toilet 27 and spread out across the cell floor if not stopped. Plaintiff claims he asked to be moved on a 28 number of occasions but his requests were denied. He further claims that despite prison -2- 1 officials’ knowledge of this plumbing problem, he was provided with insufficient supplies to 2 keep the cell clean. Through the new allegations, Plaintiff seeks to add several new defendants 3 to this action. 4 A. Motion to Amend Legal Standards 5 Federal Rule of Civil Procedure 15(a), which governs the amendment of civil 6 complaints, provides that “leave [to amend a pleading] shall be freely given when justice so 7 requires.” “In deciding whether justice requires granting leave to amend, factors to be 8 considered include the presence or absence of undue delay, bad faith, dilatory motive, repeated 9 failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and 10 futility of the proposed amendment.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 11 538 (9th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A district court need not 12 prolong litigation by permitting further amendment where such amendment would be futile. 13 Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). Granting or denying a 14 motion to amend is a matter within the court’s discretion. See, e.g., Ventress v. Japan Airlines, 15 603 F.3d 676, 680 (9th Cir. 2010); Chappel v. Laboratory Corp. of Amer., 232 F.3d 719, 725 16 (9th Cir. 2000). “[A] district court’s discretion over amendments is especially broad ‘where the 17 court has already given a plaintiff one or more opportunities to amend his complaint . . . .’” 18 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 n. 3 (9th Cir. 1987) (quoting Mir v. 19 Fosburg, 646 F.2d 342 (9th Cir. 1980)). 20 B. Application and Analysis 21 Here, upon consideration of the above factors, the Court finds that leave to amend 22 should be denied. Although there is no evidence of bad faith on Plaintiff’s part, two other 23 significant factors weigh against granting leave to amend. 24 First, the District Judge previously granted Plaintiff leave to amend after his original 25 Complaint failed to state a claim. (See Doc. 5) Plaintiff was given thirty days to amend the 26 Complaint to cure the deficiencies identified in the screening order. (Id.) The Plaintiff then 27 timely filed his First Amended Complaint, pursuant to which the District Judge ordered service 28 upon, and an Answer from, six different defendants. More than seven months after the January -3- 1 24, 2013 screening order was issued, much of which the United States Marshals Service spent 2 effecting service of process on the defendants, the final two defendants filed their answers. 3 (Doc. 36) The undersigned Magistrate Judge then issued a scheduling and discovery order on 4 September 4, 2013, and discovery is ongoing. Moreover, as noted above, Plaintiff throughout 5 this period tried unsuccessfully to amend the First Amended Complaint on three separate 6 occasions. 7 This action is nearly a year-and-a-half old. Granting leave to file another amended 8 complaint would essentially start the case over, at least with respect to those defendants Plaintiff 9 seeks to add in his proposed Second Amended Complaint; add more delay and expense in 10 reaching the merits of Plaintiff’s claims; and render it less likely the Court and parties could 11 substantially meet the congressional recommended goal established in the Civil Justice Reform 12 Act of a trial in this case eighteen months after the Complaint was filed, see 28 U.S.C. § 13 473(a)(2); and is inconsistent with Rule 1, Fed.R.Civ.P.,(“These rules . . . shall be construed and 14 administered to secure the just, speedy, and inexpensive determination of every action.”) 15 (emphasis added). For these reasons, the Court finds Plaintiff’s prior amendment, and his 16 numerous subsequent unsuccessful attempts to further amend, weigh against granting leave to 17 amend at this stage. 18 Second, the Court finds Plaintiff’s proposed amendments would be futile. An Eighth 19 Amendment claim requires a sufficiently culpable state of mind by the Defendants, known as 20 “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference 21 is a higher standard than negligence or lack of ordinary due care for the prisoner’s safety. Id. 22 at 835. To state a claim of deliberate indifference, plaintiffs must meet a two-part test. First, the 23 alleged constitutional deprivation must be, objectively, “sufficiently serious”; the official’s act 24 or omission must result in the denial of “the minimal civilized measure of life’s necessities.” 25 Id. at 834. Second, the prison official must have a “sufficiently culpable state of mind,” i.e., he 26 must act with deliberate indifference to inmate health or safety. Id. In defining “deliberate 27 indifference” in this context, the Supreme Court has imposed a subjective test: “the official must 28 both be aware of facts from which the inference could be drawn that a substantial risk of serious -4- 1 harm exists, and he must also draw the inference.” Id. at 837 (emphasis added). 2 In the screening order for the First Amended Complaint, the District Judge, in 3 dismissing Plaintiff’s Eighth Amendment claim in Count Three, found “Plaintiff’s allegations 4 do not support a claim that any of the Defendants acted with deliberate indifference to 5 Plaintiff’s health and safety.” (Doc. 8 at 8) The Judge further explained, “Moreover, Plaintiff 6 suffered no harm from the lack of cleaning supplies or the failure to clean pigeon droppings.” 7 (Id.) 8 In the proposed Second Amended Complaint, Plaintiff adds new facts regarding the 9 defendants alleged awareness of the risk of contracting MRSA. Plaintiff explains that a video 10 notification addressing the potential risk of contracting MRSA was repeatedly played on a 11 prison televison channel. Plaintiff explains that the notification “warned that MRSA can be 12 contracted by merely touching anything contaminated with the bacteria” and “cautioned 13 vigilance with self inspections for cuts and scrapes or any sign of infection.” The notification 14 further advised frequent hand washing. Plaintiff contends the video shows the defendants’ 15 awareness of the risk of harm. 16 Plaintiff’s new allegations regarding his alleged exposure to MRSA, in conjunction 17 with the original allegations, fail to sufficiently raise a claim that the defendants acted with 18 deliberate indifference to a substantial risk of serious harm to Plaintiff’s health or safety. To the 19 contrary, the allegations show prison officials were aware of the potential risk of contracting 20 MRSA and advised Plaintiff and other inmates how to minimize the risks. Plaintiff’s alleged 21 fear of contracting MRSA by walking over dried pigeon droppings and possibly tracking the 22 droppings into his cell is unsubstantiated. He fails to allege facts to show these circumstances 23 present a substantial risk of serious harm. Even if he wasn’t regularly provided with cleaning 24 supplies to address this issue, he had the ability to wash the bottoms of his shoes each time he 25 returned to his cell. 26 Plaintiff’s other new allegations in Count Three pertain to his movement to a different 27 cell in late October 2012. Plaintiff alleges he was moved to a cell in which the toilet, when 28 flushed, leaked from the bottom and spread contaminated water on the floor of his cell. He -5- 1 further alleges the sink did not drain properly. Plaintiff explains that an officer brought him a 2 spray bottle of cleaning solution soon after he was moved into the cell. Plaintiff complains he 3 had to use his own towels to clean, but acknowledges he could slow the leak by wrapping a 4 towel around the base of the toilet. Plaintiff alleges the defendants were all aware of the 5 unsanitary conditions in his cell but failed to take any action when Plaintiff requested cleaning 6 supplies or to be moved. The last time Plaintiff alleges the defendants denied his request to 7 move was on January 4, 2013. Plaintiff does not even allege he is remains in that same cell and 8 has not been moved. 9 Plaintiff’s new allegations regarding his placement in a cell with a toilet and sink that 10 did not function properly fail to sufficiently raise a claim that the defendants acted with 11 deliberate indifference to a substantial risk of serious harm to Plaintiff’s health or safety. 12 Plaintiff acknowledges the defendants provided him with cleaning solution shortly after he 13 moved to the new cell, thus reducing any risk of harm from unsanitary conditions. Plaintiff 14 further acknowledges he was able to slow any leaks by wrapping a towel around the base of the 15 toilet. While the Court recognizes the unpleasantness and inconvenience Plaintiff has 16 experienced under these circumstances, the defendants’ failure to promptly move him to a 17 different cell did not rise to the level of deliberate indifference to a substantial risk of serious 18 harm to Plaintiff’s health or safety. 19 Because Plaintiff’s proposed amended Count Three fails to sufficiently raise an Eighth 20 Amendment claim for deliberate indifference to a substantial risk of serious harm to Plaintiff’s 21 health or safety, granting Plaintiff leave to amend to add that claim would be futile. For these 22 reasons, Plaintiff’s Motion to Amend will be denied. 23 24 25 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. 26 27 28 -6-

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