Payne v. Elie et al

Filing 32

*ORDER: The 25 Motion to Disqualify United States Attorneys Office from Representing Defendants in Their Individual Capacity is DENIED; Plaintiffs 26 Motion for Leave to File Amended Complaint is DENIED; Plaintiffs Motion 31 for Temporary Restraining Order is DENIED. Defendants shall file an Answer or otherwise respond to the First Amended Complaint within 20 days of the date of this Order. Signed by Judge Cindy K Jorgenson on 3/6/12.(BAC) *Modified on 3/7/2012 to indicate WO(BAC).

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10
THURMAN DEE PAYNE,
11
Plaintiff,
12
vs.
13
WAYNE ELIE, et al.,
14
Defendants.
15

)
)
)
)
)
)
)
)
)
)

No. CIV 11-486-TUC-CKJ
ORDER

16
17

Pending before the Court are Plaintiff’s Motion to Disqualify United States Attorney’s

18

Office from Representing Defendants in Their Individual Capacity (Doc. 25), Plaintiff’s

19

Motion for Leave to File Amended Complaint (Doc. 26), and Plaintiff’s Motion for

20

Temporary Restraining Order (Doc. 31).

21
22

Procedural History

23

On August 9, 2011, Plaintiff Thurman Dee Payne filed a civil rights Complaint

24

alleging claims against Defendants Wayne Elie and Diane Lynn Elie. On September 30,

25

2011, this Court screened the Complaint, dismissed Count Three of the Complaint, and

26

ordered the Complaint be served upon Defendants.

27

On December 16, 2011, this Court granted Payne's request to file an Amended

28

Complaint and directed the Clerk of the Court to docket the lodged Complaint. Also on that

1

date, Defendants requested additional time to file an Answer. The Court granted the request

2

and ordered Defendants had up to and through January 16, 2012, to file their Answer or

3

otherwise respond to the First Amended Complaint (“FAC”).

4

On January 17, 2012, Defendants filed a Motion for Extension of Time to File Answer

5

or Other Motion in Response to Plaintiff's First Amended Complaint (Doc. 22). Payne has

6

filed a Motion Agreeing to Release Medical Records to Defendants (Doc. 24). On February

7

17, 2012, this Court ordered Defendants to file an Answer or otherwise respond to the

8

appropriate Amended Complaint within 20 days of the Court's ruling on the Motion for

9

Leave to File Amended Complaint.

10

On January 25, 2012, Payne filed a Motion to Disqualify United States Attorney's

11

Office from Representing Defendants in Their Individual Capacity (Doc. 25). Defendants

12

filed a Response on February 17, 2012.

13
14

On February 1, 2012, Payne filed a Motion for Leave to File Amended Complaint
(Doc. 26). On February 17, 2012, Defendants filed a Response.

15
16

On February 21, 2012, Payne filed a Motion for Temporary Restraining Order (Doc.
31).

17
18

Motion to Disqualify United States Attorney's Office from Representing Defendants in their
Individual Capacity

19
28 U.S.C. § 517 governs representation of federal employees by the Department of
20
Justice (“DOJ”) and 28 C.F.R. § 50.15 provides guidance to the DOJ as to whether
21
representation may be provided to an employee. Payne argues that a review of the criteria
22
considered under 28 C.F.R. § 50.15 for representation by the DOJ does not support
23
representation of Defendants. Payne asserts that the Defendants’ conduct does not reasonably
24
appear to have been performed within the scope of their employment, information that
25
supported a recommendation was misleading and frivolous, and the United States does not
26
have an interest in this matter.
27
28
-2-

1

However, “the statute gives no guidance to the Courts regarding what is or is not in

2

the interests of the United States. Thus, the statute ‘is drawn so that a court would have no

3

meaningful standard against which to judge the agency’s exercise of discretion.’” Turner v.

4

Schultz, 187 F.Supp. 2d 1288, 1294 (D.Colo 2002), quoting Lincoln v. Vigil, 508 U.S. 182,

5

191 (1993). The DOJ has unreviewable authority to decide whether to represent a federal

6

employee. Falkowski v. Equal Employment Opportunity Comm’n, 764 F.2d 907 (D.C. Cir.

7

1985), reh’g denied, 783 F.2d 252 (D.C.Cir.), certt. denied, 478 U.S. 1014, 106 S.Ct. 3319,

8

92 L.Ed.2d 727 (1986). Indeed, Payne’s “subjective belief as to whether Defendants'

9

conduct was within the scope of their employment is irrelevant because the language of the

10

regulation makes clear it is for the Government to determine whether federal employees

11

should receive representation.” Rodriguez v. Shulman, — F.Supp.2d —, 2012 WL 507014

12

(D.D.C. 2012).

13

Furthermore, Payne’s reliance on Turner for the assertion that Bureau of Prisons

14

guards were not entitled to have costs of a defense paid by the Attorney General fails to

15

acknowledge the context of that decision. In Turner, the United States had determined that

16

it would not provide or pay for a defense. The district court determined that the decision was

17

a non-reviewable agency decision. Based on the analysis in Turner, had the United States

18

decided to provide a defense, that decision would similarly have been unreviewable.

19

The Court finds the DOJ’s decision to provide representation to Defendants is an

20

unreviewable agency decision. The Court will deny the Motion to Disqualify United States

21

Attorney's Office from Representing Defendants in their Individual Capacity.

22
23

Motion for Leave to File Amended Complaint

24

Payne seeks leave to amend his complaint and has lodged a proposed Second

25

Amended Complaint (“SAC”). See Doc. 27. The SAC seeks to add P.A. Giorno (“Giorno”)

26

as a defendant and alleges a First Amendment claim. Payne alleges that Giorno intentionally

27

falsified Payne’s medical records which resulted in a denial of Payne’s administrative

28

remedy.
-3-

1

A “party may amend its pleading only with the opposing party's written consent or the

2

court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P.

3

15(a)(2). In determining whether an amended pleading should be permitted, “[f]ive factors

4

are frequently used to assess the propriety of a motion for leave to amend: (1) bad faith, (2)

5

undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether

6

Alexander has previously amended his complaint.” Allen v. City of Beverly Hills, 911 F.2d

7

367, 373 (9th Cir. 1990).

8

In this case, Payne’s proposed Second Amended Complaint (“SAC”) includes some

9

of the claims originally raised by Payne. However, Payne includes an additional defendant

10

and an additional claim based on conduct that Payne asserts that he discovered on January

11

27, 2012. Payne filed his Motion for Leave to File Amended Complaint on February 7,

12

2012. Defendants assert that the only possible new fact discovered by Payne on January 27,

13

2012, is that information previously known to Payne was included in a report authored by

14

Giorno. However, as the basis of Payne’s SAC is that Giorno falsified the report, the Court

15

does not agree with Defendants that this fact is not material. Payne having moved quickly

16

to amend his complaint after learning the new information, the Court does not find that Payne

17

has acted in bad faith.

18

The Court further finds that allowing the SAC would not cause undue delay. The

19

discovery process has not yet begun in this case (indeed, the Court has not yet issued a

20

Scheduling Order). Although counsel for Defendants asserts that obtaining permission to

21

represent Giorno would take time, the Court does not find that this would be a significant

22

delay. Further, the Court does not find this an appropriate basis to deny the Motion for

23

Leave to Amend Complaint.

24

Additionally, the Court considers that “generally a party will not be deemed

25

prejudiced by an amended pleading if the amendment relates to the same conduct,

26

transaction, or occurrence alleged in the original pleading, or if the opposing party is

27

otherwise aware of the facts contained in the amended pleading.” 61A Am. Jur. 2d Pleading

28

§ 724, citations omitted. The Court finds the proposed amendment as set forth in the SAC
-4-

1

involves conduct related to the conduct stated in the FAC. The Court finds Defendants will

2

not be prejudiced by the proposed SAC.

3

As to whether the amendments are futile, Defendants argue that the amendment would

4

be futile because Payne did not exhaust his administrative remedies. Generally, prisoners

5

are required to exhaust administrative remedies before bringing suit:

7

No action shall be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.

8

42 U.S.C. § 1997e(a). Exhaustion in cases subject to §1997e is mandatory. Porter v. Nussle,

9

534 U.S. 516, 5244, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Wyatt v. Terhune, 315 F.3d 1108,

10

1119 (9th Cir. 2003). Moreover, futility or other exceptions to the exhaustion requirement

11

do not apply. Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 1825, 149 L.Ed.2d

12

958 (2001).

6

13

The Ninth Circuit Court of Appeals has determined that the claims must be exhausted

14

before filing suit. McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (permitting

15

exhaustion pendente lite will inevitably undermine them). Additionally, this Court “may

16

look beyond the pleadings and decide disputed issues of fact” when considering a motion to

17

dismiss for failure to exhaust administrative remedies under the Prison Litigation Reform

18

Act. Wyatt v. Terhune 315 F.3d at 1120. Payne has not alleged that he exhausted his

19

administrative remedies as to the additional claim prior to seeking leave to amend his

20

complaint.1 The Court finds permitting Payne to file a SAC to include a non-exhausted claim

21

would be futile. The Court will deny the Motion for Leave to File Amended Complaint.

22
23
24
25
26
27
28

1

The Court notes that the deadline for Payne to file a Reply was February 27, 2012.
Fed.R.Civ.P. 5(b)(2)(C), 6(a)(1), 6(d); LRCiv 7.2(d). As of this date, a Reply has not been
filed. See Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (under the prison mailbox
rule, petition is considered filed on the date a pro se petitioner delivers it to prison authorities
for mailing.).
-5-

1

Motion for Temporary Restraining Order2

2

Payne seeks injunctive relief to restrain Defendant Wayne Elie from “(1) Interfering

3

with Plaintiffs filing of his Administrative remedies; (2) Encouraging co-workers to harrass

4

(sic) Plaintiff; (3) Opening the contents of Plaintiff’s legal Mail outside of Plaintiff’s

5

presence; and, (4) Threatening and Intimidating actions.” Motion, p. 1, emphasis in original.

6

“No preliminary injunction shall be issued without notice to the adverse party.”

7

Fed.R.Civ.P. 65(a)(1). Further, a temporary restraining order without notice may be granted

8

only if the applicant certifies to the court in writing the efforts, if any, that he made to give

9

notice and the reasons that notice should not be required. Fed.R.Civ.P. 65(b). "Even if the

10

[temporary restraining order] application is otherwise meritorious, it may be denied simply

11

on the ground that adequate efforts were not made to notify the opposing side, or that there

12

is no justifiable reason for issuing the [temporary restraining order] without notice."

13

Schwarzer, Federal Civil Procedure Before Trial, § 13.99, citing Ziegman Prod. v. City of

14

Milwaukee, 496 F.Supp. 965, 967 (E.D.Wisc. 1980). Payne has not certified in writing his

15

efforts, if any, to give notice to Defendants or reasons why such notice should not be

16

required.

17
18
19
20
21
22
23
24
25
26
27
28

2

To obtain injunctive relief, a moving party must show “that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Am. Trucking Assoc., Inc.
v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The moving party has the
burden of proof on each element of the test. Environmental Council of Sacramento v. Slater,
184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000). In addition, the “serious questions” version
of the sliding scale test for preliminary injunctions remains viable after the Supreme Court’s
decision in Winter. Alliance for the Wild Rockies v. Cottrell, 632 F. 3d 1127, 1134-35 (9th
Cir. 2011). Under that test, a preliminary injunction is appropriate when a plaintiff
demonstrates that “serious questions going to the merits were raised and the balance of
hardships tips sharply in [plaintiff’s] favor.” Id., citing Lands Council v. McNair, 537 F.3d
981, 987 (9th Cir. 2008) (en banc). That approach requires that the elements of the
preliminary injunction test be balanced, so that a stronger showing of one element may offset
a weaker showing of another. Payne has not requested injunctive relief that demonstrates
serious questions that go to the merits of the claims set forth in the FAC.
-6-

1

Moreover, an injunction should not issue if it “is not of the same character, and deals

2

with a matter lying wholly outside the issues in the suit.” Kaimowitz v. Orlando, 122 F.3d

3

41, 43 (11th Cir. 1997); see also Gon v. First State Ins. Co., 871 F.2d 863, 865 (9th Cir.

4

1989) (injunction is “designed to accord or protect some or all of the substantive relief sought

5

by a complaint”); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (party moving for

6

preliminary injunctive relief "must necessarily establish a relationship between the injury

7

claimed in the party's motion and the conduct asserted in the complaint"); . Payne’s FAC

8

raises Eighth Amendment claims regarding medical care. The injunctive relief requested by

9

Payne is not of the same character as the Eighth Amendment claims. The Court will deny

10

the request for a temporary restraining order.

11
12

Accordingly, IT IS ORDERED:

13

1.

14
15
16

The Motion to Disqualify United States Attorney’s Office from Representing

Defendants in Their Individual Capacity (Doc. 25) is DENIED.
2.

The Plaintiff’s Motion for Leave to File Amended Complaint (Doc. 26) is

DENIED.

17

3.

Plaintiff’s Motion for Temporary Restraining Order (Doc. 31) is DENIED.

18

4.

Defendants shall file an Answer or otherwise respond to the First Amended

19

Complaint within 20 days of the date of this Order.

20

DATED this 6th day of March, 2012.

21
22
23
24
25
26
27
28
-7-