Garcia v. Ryan et al

Filing 73

ORDER ON REPORT AND RECOMMENDATION: Magistrate Judge Fine's Report & Recommendation ("R&R") 68 is accepted and adopted in part, as set forth in this order; the remainder of the R&R is not accepted; Plaintiff's Motion for Leave t o Amend 65 is granted subject to the limitations as set forth in this order; upon incorporating the exclusions and modifications to his proposed Second Amended Complaint, Plaintiff must file a clean version of the Second Amended Complaint no later than 2/15/17; because Plaintiff is no longer a prisoner and is represented by counsel, the Second Amended Complaint will not be screened by the Court. Signed by Judge Diane J Humetewa on 2/2/17. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David M. Garcia,

No. CV-13-1591-PHX-DJH (DMF)
Plaintiff,

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v.

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ORDER

Charles L. Ryan, et al.,

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Defendants.

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This matter is before the Court on the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge Deborah M. Fine on December 20, 2016. (Doc.

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68). Judge Fine recommends in the R&R that Plaintiff’s Motion for Leave to Amend

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Complaint (Doc. 65) be granted in part and denied in part. Plaintiff, through counsel,

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filed an Objection to the Magistrate Judge’s R&R (Doc. 72) on January 3, 2017.

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I. Background

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Plaintiff does not object to the factual and procedural background section of the

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R&R. The Court therefore adopts that section. As explained in the R&R, Plaintiff filed

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this action in August 2013 while confined in an Arizona State Prison. He was released

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from prison in February 2016. After the initial complaint was dismissed with leave to

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amend, Plaintiff filed a First Amended Complaint on February 13, 2014. In Count One

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he alleged a claim of “[t]hreat to safety” in violation of the Eighth Amendment. In Count

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Two he alleged a claim of inadequate medical care in violation of the Eighth

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Amendment. Plaintiff’s claims for relief were based on injuries Plaintiff sustained on

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September 20, 2012 when rioting prison inmates attacked and beat him, resulting in

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severe and traumatic brain injury and other bodily injuries. The Court screened the First

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Amended Complaint and allowed Count One to proceed. Three defendants on that claim

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were identified and served by the end of October 2015. The underlying factual basis for

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the claim is that the defendants “went against established policies and intentionally

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opened a secured gate during a riot, thereby disregarding a substantial risk of harm to

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[Plaintiff].” (Doc. 68 at 4) (quoting Doc. 46 at 5). The Court dismissed Count Two

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without prejudice after finding that Plaintiff failed to allege sufficient facts to state a

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claim for deliberate indifference to his serious medical needs under the Eighth

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Amendment.

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The three defendants filed an Answer (Doc. 48) to the First Amended Complaint

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on March 14, 2016. Two days later Judge Fine issued a Scheduling Order (Doc. 50).

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Plaintiff’s counsel entered an appearance on June 8, 2016.

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including the deadline to seek leave to amend, was amended, without objection, several

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times. On the revised deadline to seek leave to amend the complaint, November 15,

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2016, Plaintiff filed a Motion for Leave to Amend Complaint (Doc. 65). Defendants

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filed a Partial Opposition to Plaintiff’s Motion for Leave to Amend (Doc. 66) and

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Plaintiff filed a Reply (Doc. 67).

The Scheduling Order,

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After issuing the R&R, Judge Fine directed Plaintiff to file a proposed Second

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Amended Complaint in compliance with LRCiv 15.1. On December 30, 2016, Plaintiff

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filed a Notice of Lodging of Local Rule Compliant Proposed Second Amended

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Complaint (Doc. 70) to which he attached a proposed Second Amended Complaint that

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indicates in what respect it differs from the First Amended Complaint by striking through

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the text to be deleted and underlining the text to be added.

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II. Discussion

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A. Legal Standards

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The district judge "shall make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which objection is made."

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28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge "may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

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In considering a motion for leave to amend, Fed.R.Civ.P. 15(a) provides that

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“[t]he court should freely give leave [to amend a pleading] when justice so requires.”

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Rule 15 and Ninth Circuit case law are clear that leave to amend should be liberally

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granted. See, e.g., AmerisourceBergen Corporation, 465 F.3d 946, 951 (9th Cir. 2006)

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(holding that “Rule 15(a) is very liberal and leave to amend ‘shall be freely given when

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justice so requires.’”). “In deciding whether justice requires granting leave to amend,

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factors to be considered include the presence or absence of undue delay, bad faith,

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dilatory motive, repeated failure to cure deficiencies by previous amendments, undue

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prejudice to the opposing party and futility of the proposed amendment.” Moore v.

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Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989) (citing Foman v.

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Davis, 371 U.S. 178, 182 (1962)). However, "[n]ot all of the factors merit equal weight."

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "As this

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circuit and others have held, it is the consideration of prejudice to the opposing party that

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carries the greatest weight." Id. (citations omitted). "Undue delay by itself . . . is

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insufficient to justify denying a motion to amend." See Owens v. Kaiser Foundation

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Health Plan, Inc., 244 F.3d 708, 712-713 (9th Cir. 2001) (quoting Bowles v. Reade, 198

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F.3d 752, 758 (9th Cir. 1999)). Granting or denying a motion to amend is a matter within

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the district court’s discretion. See, e.g., Ventress v. Japan Airlines, 603 F.3d 676, 680

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

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2000).

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B. Application

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Plaintiff’s proposed Second Amended Complaint contains six causes of action and

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names 41 defendants plus additional John and Jane Doe defendants. (Doc. 70-1). Judge

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Fine recommends in the R&R that Plaintiff’s Motion for Leave to Amend be denied

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except as to Count III. With respect to Count III, Judge Fine recommends that Plaintiff

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be permitted to assert it as a claim but only as to eight defendants: Puri, Pacheco, Runge,

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Jasso, Patrick, Luker, Thompson, and Baker. Plaintiff does not object to Judge Fine’s

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recommendation regarding Count III. (Doc. 72 at 8, n.6). That recommendation will

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therefore be adopted.

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Plaintiff also does not object to Judge Fine’s recommendation that, pursuant to the

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Eleventh Amendment, he be prohibited from naming the State of Arizona or the Arizona

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Department of Corrections (“ADOC”) as defendants in this federal court action. That

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recommendation will therefore be adopted. Similarly, Plaintiff does not object to Judge

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Fine’s recommendation that pursuant to A.R.S. § 31-201.01(F), any state law causes of

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action against individual employees of ADOC, including the director and correctional

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officers, be excluded. Accordingly, that recommendation will also be adopted.

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Therefore, Plaintiff’s proposed causes of action (Counts I-VI) may not be asserted

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against the State of Arizona or the Arizona Department of Corrections.

Plaintiff’s

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proposed state law causes of action (Counts IV-VI) may not be asserted against any

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individual employees of the ADOC. Because Plaintiff’s proposed state law claim in

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Count V is alleged against the State of Arizona and individual employees of ADOC, that

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cause of action must be excluded from his proposed Second Amended Complaint.

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Plaintiff objects to the remainder of the R&R, specifically, the analysis and

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recommendation that proposed Counts I, II, IV and VI be excluded from his Second

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Amended Complaint. The Court has therefore conducted a de novo review of the parts of

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the R&R to which Plaintiff objects.

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1. Compliance with LRCiv 15.1

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Among the reasons identified by Judge Fine for recommending denial of much of

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Plaintiff’s Motion for Leave to Amend is his failure to initially comply with LRCiv 15.1

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by attaching a proposed amended complaint that showed how it differed from the

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complaint it was intended to amend. Although Plaintiff attached a proposed Second

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Amended Complaint to the motion to amend, he did not bracket or strike through the text

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of the First Amended Complaint to be deleted or underline the text to be added.

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However, Plaintiff subsequently complied with Judge Fine’s order to submit a proposed

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Second Amended Complaint that complies with LRCiv 15.1.

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compliance with Judge Fine’s order, the Court will not use Plaintiff’s initial non-

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compliance with LRCiv 15.1 as a basis to deny the motion to amend. See Christian v.

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Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002) (“The district court has considerable

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latitude in managing the parties’ motion practice and enforcing local rules that place

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parameters on briefing.”).

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Given Plaintiff’s

2. Prejudice and Futility

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As referenced above, prejudice to the opposing party is the key factor the Court

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must consider in deciding whether to grant leave to amend. In their partial opposition to

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Plaintiff’s motion to amend, Defendants do not argue they will suffer prejudice if leave to

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amend is granted. The absence of any demonstration of prejudice supports granting

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Plaintiff’s motion.

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Defendants’ only opposition to the proposed Second Amended Complaint is that

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two of the six proposed causes of action, Counts III and V, would be futile because

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Plaintiff failed to sufficiently link the named defendants’ conduct to the violations

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alleged. The Court has already addressed Counts III and V above. Neither Plaintiff nor

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Defendant has objected to Judge Fine’s recommendation with respect Counts III and V

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and, as noted, this Court will accept that recommendation. Defendants do not argue that

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Counts I, II, IV or VI would be futile.

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3. Remaining Factors

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Although Defendants do not argue that any of the remaining relevant factors,

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including the presence or absence of undue delay, bad faith, dilatory motive, and repeated

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failure to cure deficiencies by previous amendments, support denial of the motion to

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amend, the Court will briefly address them. Regarding undue delay, the Court shares

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Judge Fine’s concerns in the R&R about the age of this case and Plaintiff’s failure to

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present his proposed new claims and defendants earlier. Plaintiff’s motion to amend,

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however, was not untimely. Moreover, until Plaintiff’s release from prison in February

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2016, his prospects for obtaining counsel to represent him in this matter were slim.

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Within four months after his release, Plaintiff retained counsel, who, rather than allowing

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the deadline for leave to amend to expire, sought extensions. Defendants did not oppose

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those requested extensions and they were granted. The motion to amend was then filed

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on November 15, 2016, which was the revised deadline. Under these circumstances, the

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Court cannot conclude that Plaintiff unduly delayed his request for leave to amend. Even

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if the Court did find undue delay, Ninth Circuit case law is clear that this factor alone is

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insufficient to justify denying a motion to amend. See Owens, 244 F.3d at 712-713.

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Likewise, Defendants have not argued, and the Court has no basis to find, that Plaintiff

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has acted in bad faith or with a dilatory motive. As a result, the absence of undue delay,

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bad faith or a dilatory motive supports granting the motion to amend.

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Regarding the final factor, Plaintiff previously had an opportunity to amend his

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complaint after the Court issued a screening order that denied it with leave to amend. As

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explained above, Plaintiff then submitted a First Amended Complaint. Plaintiff did not

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seek leave to amend again until after he was released and had retained counsel. The

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Court finds that Plaintiff’s one previous request for leave to amend is not a basis to deny

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his current request.

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III. Conclusion

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The Court has conducted its own de novo review of the portions of the R&R to

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which Plaintiff has objected. Applying the liberal standards for motions to amend, along

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with the relevant factors the Court must consider, the Court finds that Plaintiff’s motion

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to amend should be granted, subject to the limitations in the R&R adopted by the Court.

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Accordingly,

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IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 68) is accepted and

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adopted in part, as explained in the body of the Order. The remainder of the R&R is

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not accepted.

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Amend (Doc.
65) is GRANTED subject to the following limitations:

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(1)

Count V of the proposed Second Amended Complaint is excluded;

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(2)

Counts I-IV and VI may not name the State of Arizona or the Arizona

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Department of Corrections as defendants;
(3)

Plaintiff’s state law causes of action in Counts IV and VI may not name any

individual employees of the ADOC as defendants.
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Count III may be asserted against the following eight defendants only: Puri,

Pacheco, Runge, Jasso, Patrick, Luker, Thompson, and Baker.

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Upon incorporating these exclusions and modifications to his proposed Second

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Amended Complaint, Plaintiff must file a clean version of the Second Amended

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Complaint no later than February 15, 2017. Because Plaintiff is no longer a prisoner

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and is represented by counsel, the Second Amended Complaint will not be screened by

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the Court.

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Dated this 2nd day of February, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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