Simmons v. Hedgpeth

Filing 165

ORDER denying Plaintiff's Motion to Extend the Discovery Deadline and Motions to Amend re 142 , 150 , 157 signed by Magistrate Judge Stanley A. Boone on 2/29/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER I. SIMMONS,

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Plaintiff,

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v.

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GRISSOM, et al.,

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Defendants.

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Case No.: 1:07-cv-01058-DAD-SAB (PC)
ORDER DENYING PLAINTIFF‟S MOTION TO
EXTEND THE DISCOVERY DEADLINE AND
MOTIONS TO AMEND
[ECF Nos. 142, 150, 157]

Plaintiff Christopher I. Simmons is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.

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I.

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RELEVANT HISTORY

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On December 2, 2015, Plaintiff filed a motion to extend the discovery deadline an additional

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90 days. (ECF No. 142.) Plaintiff also requests a separate discovery and scheduling order be issued

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for unserved Defendants Sauceda, Ellstrom, and Rufino in the event that they are located and served.

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On December 24, 2015, Plaintiff filed a motion for leave to amend the complaint. (ECF No.

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150.) On January 14, 2016, Defendants filed an opposition to Plaintiff‟s motion for leave to amend.

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(ECF No. 155.)

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On January 15, 2016, Plaintiff filed a second motion for leave to amend the complaint, along
with a proposed second amended complaint which was lodged by the Court. (ECF Nos. 157, 158.)
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Pursuant to court order, Defendants filed a response to Plaintiff‟s motion to extend the

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discovery deadline on January 19, 2016. (ECF No. 159.)

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II.

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DISCUSSION

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A.

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Plaintiff seeks to extend the discovery deadline for 90 days. Defendants oppose Plaintiff‟s

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Motion to Extend Discovery Deadline and Issuance of Separate Scheduling Order

motion because Plaintiff has failed to demonstrate good cause for an extension.

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Rule 6 of the Federal Rules of Civil Procedure provides that “[w]hen an act … must be done

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within a specified time, the court may, for good cause, extend the time . . . on motion made after the

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time has expired if the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1).

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Pursuant to Federal Rule of Civil Procedure 16(b), a scheduling order “may be modified only for good

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cause and with the judge‟s consent.” Fed. R. Civ. P. 16(b)(4). The district court may modify the

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scheduling order “if it cannot reasonably be met despite the diligence of the party seeking the

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extension.” Id. “A scheduling order is not a frivolous piece of paper, idly entered, which can be

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cavalierly disregarded by counsel without peril.” Id. at 610. (citation and quotations omitted).

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The “good cause” standard “primarily considers the diligence of the party seeking the

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amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). If the party

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seeking modification of the scheduling order, “was not diligent, the inquiry should end.” Id.

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“[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.”

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Id.

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Discovery in this action opened in July 2014, and the parties were given eight months to

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conduct pretrial discovery. (ECF No. 90.) In December 2014, Plaintiff was transferred from the

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California Medical Facility (CMF) to the Atascadero State Hospital (ASH) for psychiatric treatment.

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(ECF Nos. 105, 107.) Plaintiff was retained at ASH for 49 days, from December 5, 2014, to January

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23, 2015. (ECF No. 113, at 2 and n.1.) During this time, Plaintiff was without his legal materials.

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(Id. at 2.) As a result, the Court modified the scheduling order by extending the discovery deadline

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and the dispositive motion deadline, each by 60 days. (ECF No. 115.)

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Then, approximately two months later, Plaintiff was transferred from the CMF to ASH a

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second time. (ECF No. 120.) Plaintiff was again separated from his legal materials for just over 90

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days. The Court modified the scheduling order by extending the discovery deadline for an additional

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60 days, and the dispositive motion deadline for an extra 50 days. (ECF No. 123.) On September 28,

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2015, the Court denied Plaintiff‟s motion to stay the proceedings but extended the discovery and

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dispositive motion deadlines each by thirty days. (ECF No. 131.) The discovery deadline expired on

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October 28, 2015. (ECF No. 131.) On November 9, 2015, the Court denied Plaintiff‟s motion for

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reconsideration of the denial of his request to stay the proceedings. (ECF No. 135.)
In the present motion to extend the discovery deadline, Plaintiff fails to present due diligence

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and good cause to further extend the discovery deadline. Plaintiff cites his transfers to ASH as

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grounds to warrant additional time to conduct discovery in this action. (ECF No. 142, at p. 1.)

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However, Plaintiff had from July 23, 2014 to October 28, 2015, to conduct discovery as to Defendant

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Akanno and from February 17, 2015 to October 28, 2015, to conduct discovery as to Defendant

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Keiley. By February 6, 2015, Plaintiff had transferred out of ASH, and was housed back at the

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California Medical Facility (CMF). (ECF No. 117.)

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Defendants submit that Plaintiff served discovery in this action before he was transferred to

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ASH. Defense counsel indicates that Plaintiff served interrogatories and requests for production of

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documents on September 8, 2014, and Defendants Akanno, Grissom, Rients, and St. Lucia provided

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responses on November 6, 2014, and November 10, 2014.1 (ECF No. 159-1, Decl. of Kelly A.

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Samson, ¶¶ 4-7.) Defense counsel further submits that on November 17, 2015, Plaintiff served

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requests for admissions and interrogatories on Defendant Keiley, after the discovery deadline of

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October 28, 2015. (ECF No. 159-1, Decl. of Kelly A. Samson, ¶ 14, Ex. 3.) On November 30, 2015,

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Plaintiff also served requests for production of documents on Defendant Keiley and requests for

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admission on Defendant Akanno. (ECF No. 159-1, Decl. of Kelly A. Samson, ¶ 14, Ex. 4.) Plaintiff

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has had ample time to conduct discovery from the time both Defendants Akanno and Keiley appeared

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In addition, on September 8, 2014, Plaintiff served interrogatories and requests for production of documents on
Defendant Keiley who at that time was under a protective order staying discovery. (Decl. of Kelly A. Samson, ¶ 9; ECF
Nos. 94, 102.) Defendant Keiley subsequently sought and was granted an extension of time to file a response to Plaintiff‟s
September 8, 2014, discovery requests. (ECF Nos. 160, 162.)

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in this action. Plaintiff conducted discovery prior to transfer to ASH, and does not present a sufficient

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showing of due diligence after his return to CMF on June 17, 2015. Although Plaintiff may now wish

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to conduct further discovery, the deadline has expired (after several extensions of the initial 8 month

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period), and Plaintiff has failed to show due diligence and good cause to further extend the deadline to

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pursue additional discovery requests on Defendants Keiley and Akanno. Accordingly, Plaintiff‟s

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motion for an extension of the discovery deadline must be denied. In addition, because Defendants

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Sauceda, Ellstrom, and Rufino have not yet been served with the summons and complaint and have

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not yet appeared in this case, there is no basis for issuance of a discovery and scheduling order as to

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these Defendants.

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B.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party=s

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pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a

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party may amend only by leave of the court or by written consent of the adverse party, and leave shall

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be freely given when justice so requires. Fed. R. Civ. P. 15(a).

Motion for Leave to Amend

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Rule 15(a) is very liberal and leave to amend „shall be freely given when justice so requires.‟”

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AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (quoting Fed. R.

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Civ. P. 15(a)). However, courts “need not grant leave to amend where the amendment: (1) prejudices

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the opposing party; (2) is sought in bad faith; (3) produces an undue delay in the litigation; or (4) is

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futile.” AmerisourceBergen Corp., 465 F.3d at 951. Relevant to the futility factor, a plaintiff may not

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bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 20(a)(2);

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Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 607 (7th Cir.

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2007).

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Here, Plaintiff‟s attempt to amend the complaint is futile. Plaintiff seeks to amend the

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complaint to add an Eighth Amendment claim regarding being “dumped” off a gurney causing severe

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debilitating pain against Defendant Dr. Akanno. This claim was previously addressed by the Court in

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its March 15, 2013, screening order. As stated in the Court‟s March 15, 2013, order, although Plaintiff

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stated a cognizable claim against a “Doe” nurse and four “Doe” correctional officers, the claim was

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improperly joined in this action. (Order, ECF No. 47, at 6.) The Court further stated “Plaintiff did not
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allege that any of the Doe defendants involved in the gurney incident are the same Doe defendants

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involved in the „heat risk‟ incidents.” (Id. at 9.) Plaintiff contends that he now seeks to amend to

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identify of Defendant Dr. Akanno as liable for the gurney incident. However, Plaintiff‟s first amended

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complaint did not and does not state a cognizable claim against Defendant Dr. Akanno as a “Doe”

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defendant based on the gurney incident; rather, the cognizable claim was found only as to one “Doe”

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nurse and four “Doe” correctional officers. Thus, Plaintiff‟s motion to amend to add the claim appears

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to be a transparent attempt to bootstrap this claim into this action against Dr. Akanno who is a

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Defendant in an unrelated claim. Indeed, Plaintiff‟s inmate grievance attached to his motion to amend

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confirms that it was a nurse and correctional officers who alleged “dumped” him out of the gurney. In

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Log Number KVSP-0-06-03503, Plaintiff states “On October 13, 2006, at approximately 2100 hours I

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fell out of my wheelchair when my left arm gave out on me as a result of weakness due to burning

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pain on the left side of my head, neck, and shoulder, radiating down the left side, my entire back,

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including my left buttock down the left leg. During the medical emergence call, the nurse looked on

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as a group of correctional officers, supervised by two Sergeants (Sgts), picked me up without a

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stretcher or brace, and put me on a gurney. At the facility A clinic, the same C/O‟s dumped me off the

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gurney sideways while my midsection was secured to the gurney, leaving me hanging off the side

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exacerbating my serious back condition, resulting in 10/10 pain; BP 196/138.” (First Mot. to Amend,

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ECF No. 150, at 8.)

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Furthermore, Plaintiff‟s proposed second amended complaint, lodged on January 15, 2016,

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does not set forth a sufficient basis for relief as to Dr. Akanno in relation to the gurney incident. (ECF

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No. 158.) Rather, after review of Plaintiff‟s proposed second amended complaint, it appears that

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Plaintiff is attempting to re-raise a claim under the Americans with Disabilities Act (ADA). (ECF No.

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158.) However, the Court previously screened Plaintiff‟s first amended complaint and found that

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Plaintiff failed to state a claim under the ADA, and Plaintiff‟s second amended complaint also fails to

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state a cognizable claim under the ADA. Plaintiff‟s allegations are based on inadequate treatment and

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denial of certain medical devices which does not give rise to a claim under the ADA. Title II of the

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ADA provides that “no qualified individual with a disability shall, by reason of such disability, be

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excluded from participation in or be denied the benefits of the services, programs, or activities of a
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public entity, or be subject to discrimination by such entity.” 42 U.S.C. § 12132. Title II applies to

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the services, programs, and activities provided for inmates by jails and prisons. Pennsylvania Dep‟t of

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Corr. v. Yeskey, 524 U.S. 206, 208-13 (1998); Simmons v. Navajo Cnty., 609 F.3d 1011, 1021-22 (9th

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Cir. 2010); Pierce v. Cnty. of Orange, 526 F.3d 1190, 1214-15 (9th Cir. 2008). “To establish a

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violation of Title II of the ADA, a plaintiff must show that (1) [he] is a qualified individual with a

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disability; (2) [he] was excluded from participation in or otherwise discriminated against with regard

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to a public entity‟s services, programs, or activities; and (3) such exclusion or discrimination was by

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reason of [his] disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); accord Simmons,

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609 F.3d at 1021; McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).
Plaintiff‟s second amended complaint does not set forth any facts supporting a claim that he

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was excluded from or discriminated against with regard to services, programs, or activities at ASP by

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reason of his disability. To the contrary, the incidents giving rise to his alleged ADA claim relate

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solely to Plaintiff‟s medical condition, the medical treatment or lack thereof, and conditions of his

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confinement, which does not provide a basis upon which to impose liability under the ADA.

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Simmons, 609 F.3d at 1022 (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)).

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Accordingly, Plaintiff‟s motion to amend shall be denied as futile.

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II.

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ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff‟s motion to extend the discovery deadline is DENIED; and

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2.

Plaintiff‟s motion for leave to amend the complaint is DENIED.

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IT IS SO ORDERED.

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Dated:

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February 29, 2016
UNITED STATES MAGISTRATE JUDGE

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