Solis #153261 v. Ryan et al

Filing 126

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED the Report and Recommendation 109 is ADOPTED. IT IS FURTHER ORDERED the Motion to Amend 90 is DENIED. Signed by Senior Judge Roslyn O Silver on 5/30/19. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony Lozano Solis,

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Plaintiff,

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ORDER

v.

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No. CV-17-02378-PHX-ROS (CDB)

Charles L Ryan, et al.,

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Defendants.

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On June 11, 2018, the Court determined Plaintiff had stated claims against

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numerous defendants, including Defendant M. Johnson, for allegedly denying Plaintiff

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“adequate medical treatment” in 2016. (Doc. 16 at 8). The United States Marshals

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completed service of process on some defendants but were unable to complete service of

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process on Johnson. (Doc. 26, 55, 56). On October 11, 2018, Magistrate Judge Deborah

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M. Fine entered a Scheduling and Discovery Order. (Doc. 31 at 1). That Order stated

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“[a]ll motions to amend the complaint or add parties shall be filed by November 25, 2018.”

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(Doc. 31 at 2). Plaintiff did not seek to amend prior to that date.

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On March 26, 2019, Plaintiff filed a “Motion for Leave to Amend Count 3.” (Doc.

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90). According to that document, Plaintiff wishes to “change from defendant Johnson to

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defendant R. Stewart.” (Doc. 90 at 1). Plaintiff explains he “had problems serving

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defendant M. Johnson” so he requests he be allowed to name R. Stewart, the current

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“Regional Medical Director,” in Count 3 instead of Johnson. (Doc. 90 at 1). Magistrate

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Judge Camille D. Bibles issued a Report and Recommendation (“R&R”) recommending

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the motion to amend be denied as untimely and futile.

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As explained by Magistrate Judge Bibles, the motion to amend was filed long after

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the November 25, 2018, deadline for such motions. In addition, there are no allegations

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“how Stewart himself acted to violate Plaintiff’s constitutional right to adequate medical

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care.” (Doc. 109 at 2). In his objections, Plaintiff states he would have amended sooner if

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he had known there would be difficulties in locating Johnson. Plaintiff also states he wishes

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to name Stewart as a defendant because Stewart has implemented an “unconstitutional

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policy” involving inadequate medical treatment.

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Upon a de novo review, the R&R correctly concludes the motion to amend should

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be denied. To begin, the motion is untimely. If Plaintiff believed he had claims against

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Stewart involving the events in 2016, he should have included them long ago. The fact

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that Johnson could not be served is irrelevant to whether Stewart should have been named

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as a defendant earlier. Beyond the timeliness issue, the R&R also correctly concludes

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Plaintiff has not alleged sufficient facts to state a plausible claim against Stewart regarding

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events in 2016. Plaintiff’s only allegation regarding Stewart is that Plaintiff brought the

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inadequate medical care to Stewart’s attention in February 2019. Alerting Stewart in 2019

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that Plaintiff suffered inadequate medical care in 2016 does not state a plausible claim for

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relief against Stewart.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 109) is ADOPTED.

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IT IS FURTHER ORDERED the Motion to Amend (Doc. 90) is DENIED.

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Dated this 30th day of May, 2019.

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Honorable Roslyn O. Silver
Senior United States District Judge

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