Hisle v. Conanon, et al.

Filing 72

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion to Extend the Discovery Deadline contrued as a Motion to Amend the Complaint 60 be Granted; the Clerk of the Court be DIRECTED to File the Second Amended Complaint, lodged on Ma y 22, 2019 67 re 60 MOTION for EXTENSION OF TIME to Extend Discovery Schedual Period to Conclude filed by Dennis Curtis Hisle ; referred to Judge O'Neill,signed by Magistrate Judge Stanley A. Boone on 6/18/19. Objections to F&R due 14 - Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DENNIS CURTIS HISLE,

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Plaintiff,

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v.
MARLYN CONANON, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING TO GRANT PLAINTIFF’S
MOTION TO AMEND THE COMPLAINT
[ECF No. 60]

pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s second motion to extend the discovery deadline, filed

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Case No. 1:17-cv-01400-LJO-SAB (PC)

Plaintiff Dennis Curtis Hisle is appearing pro se and in forma pauperis in this civil rights action

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April 12, 2019.

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I.

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RELEVANT BACKGROUND

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This action is proceeding on Plaintiff’s deliberate indifference claim against Defendants

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Marlyn Conanon and John Doe (at Mercy Hospital).1
Defendant Conanan filed an answer to the complaint on April 10, 2018. On April 11, 2018,

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the Court issued the discovery and scheduling order.

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The John Doe Defendant has not yet been identified or served with process.

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On August 8, 2018, Plaintiff filed a motion to compel. Defendant filed an opposition on

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August 217, 2018, and Plaintiff filed a reply on September 10, 2018. On September 14, 2018, the

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Court denied Plaintiff’s motion to compel.

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On October 17, 2018, Plaintiff filed a motion for subpoenas. Defendant filed an opposition on

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October 31, 2018, and Plaintiff filed a reply on November 13, 2018. On November 14, 2018, the

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Court denied Plaintiff’s motion for subpoenas.

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On January 11, 2019, the Court granted Plaintiff’s request to extend the time to amend the
complaint to April 17, 2019, and denied, without prejudice, Plaintiff’s motion for subpoenas. T
On March 13, 2019, Plaintiff filed a motion for recusal of the undersigned. Plaintiff’s motion
was denied on March 20, 2019.
On March 22, 2019, Plaintiff filed a second motion for subpoenas. Defendant filed an

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opposition on April 12, 2019, and Plaintiff filed a reply on April 24, 2019. On April 30, 2019,

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Plaintiff’s motion for subpoenas was granted in part and denied in part.

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As previously stated, on April 12, 2019, Plaintiff filed a second request to extend the discovery
deadline. Defendant filed an opposition on May 2, 2019, and Plaintiff filed a reply on May 15, 2019.

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II.

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DISCUSSION

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Under Rule 16 of the Federal Rules of Civil Procedure, a discovery and scheduling order

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controls the course of litigation unless the Court subsequently alters the original order. Fed R. Civ. P.

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16(d). Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 16(b),

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and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 609 (9th Cir. 1992). To establish good cause, the party seeking the modification of a scheduling

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order must generally show that even with the exercise of due diligence, they cannot meet the

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requirement of that order. Id. The court may also consider the prejudice to the party opposing the

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modification. Id. If the party seeking to amend the scheduling order fails to show due diligence the

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inquiry should end and the court should not grant the motion to modify. Zivkovic v. Southern

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California Edison, Co., 302 F.3d 1080, 1087 (9th Cir. 2002). A party may obtain relief from the

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court’s deadline date for discovery by demonstrating good cause for allowing further discovery. Fed.

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R. Civ. P. 16(b)(4).

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“Good cause may be found to exist where the moving party shows that it diligently assisted the

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court with creating a workable scheduling order, that it is unable to comply with the scheduling

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order’s deadlines due to matters that could not have reasonably been foreseen at the time of the

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issuance of the scheduling order, and that it was diligent in seeking an amendment once it became

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apparent that the party could not comply with the scheduling order.” Kuschner Nationwide Credit,

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Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009).

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On March 6, 2019, Plaintiff served a second request for production of documents on Defendant

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Conanan. (Perkins Decl., Ex. A, ECF No. 64-1.) Defendant responded to the discovery on April 22,

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2019, within the forty-five day deadline set forth in the discovery and scheduling order.

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In response to Plaintiff’s second request for production of documents, Defendant identified and

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disclosed the identity of the x-ray tech employee who performed the taking of Plaintiff’s x-ray images

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on May 16, 2016, as Quincy Richards. (Perkins Decl., Ex. A.) In addition, on April 30, 2019, the

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Court granted Plaintiff’s request for a subpoena to obtain any and all available records from Mercy

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Hospital regarding the identity of the x-ray technician or person who conducted the x-ray imaging on

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May 1, 2016 through May 16, 2016. (ECF No. 63.)

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Plaintiff now seeks a second amendment to the discovery and scheduling order. Plaintiff

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contends that he has been denied discovery to ascertain the name of the x-ray tech employee and the

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primary care physician through the CDCR Form 22 process and the 602 process. Plaintiff also claims

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that he “is prepared to name the defendant and amend the claim” but his opportunity to amend should

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be “preserved” until Defendants answer his second set of document requests.

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Defendant Conanon opposes Plaintiff’s request and argues that Plaintiff has not been diligent

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in seeking to amend the complaint to identify the “Doe” Defendant because he received the names of

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the doctors who treated him at Mercy Hospital several months ago.

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In Plaintiff’s reply to Defendants’ opposition, Plaintiff clarifies that he seeks only to extend the

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deadline to amend the complaint to identify the “Doe” Defendant, and on May 22, 2019, Plaintiff

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submitted a third amended complaint which was lodged by the Court. (ECF Nos. 66, 67.) Therefore,
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the Court will construe Plaintiff’s April 12, 2019, request as a motion for leave to file a second

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amended complaint, which was lodged by the Court on May 22, 2019.

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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 twenty-one days after serving, or if a response was filed, within

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twenty-one days after service of the response. Fed. R. Civ. P. 15(a)(1). Otherwise, a party may

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amend only by leave of the court or by written consent of the adverse party. Fed. R. Civ. P. 15(a)(2).

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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)). “This policy is to be applied with extreme liberality.” C.F. v. Capistrano Unified Sch.

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Dist., 654 F.3d 975, 985 (9th Cir. 2011). “This liberality in granting leave to amend is not dependent

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on whether the amendment will add causes of action or parties.” DCD Programs, Ltd. v. Leighton,

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833 F.2d 183, 186 (9th Cir. 1987). However, courts “need not grant leave to amend where the

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amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay

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in the litigation; or (4) is futile.” AmerisourceBergen Corp., 465 F.3d at 951.

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Under the mailbox rule, Plaintiff filed the instant motion to amend the complaint on April 9,

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2019-8 days prior to the deadline to amend the pleadings. It is clear that Plaintiff seeks leave to amend

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solely to identify the “Doe” Defendant.2 Even if there was some delay in bringing the motion to

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amend, mere delay does not equate to bad faith on the part of Plaintiff, and there is no basis to support

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a finding that Plaintiff intentionally delayed filing a motion to amend. See Leon v. IDX Sys. Corp.,

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464 F.3d 951, 961 (9th Cir. 2006) (“A party ‘demonstrates bad faith by delaying or disrupting the

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litigation or hampering enforcement of a court order.’”) (citing Primus Auto. Fin. Servs., Inc. v.

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Batarse, 115 F.3d 644, 649 (9th Cir. 1997)); see also Howey v. United States, 481 F.2d 1187, 1191

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(9th Cir. 1973) (undue delay, alone is insufficient to deny leave to amend the pleadings). In addition,

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the Court finds that given Plaintiff’s pro se status and incarceration, he has exercised sufficient due

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diligence to ascertain the identity of the “Doe” Defendant to properly amend the complaint, and any

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When a plaintiff learns of the identity of a Doe defendant through discovery or other means, he may move to file an
amended complaint to add the newly-named defendant. Brass v. County of Los Angeles, 328 F.3d 1192, 1195-98 (9th Cir.
2003); see also Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013). Indeed, the failure to afford a plaintiff such
opportunity is error. Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999).

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prejudice to Defendants is minimal. Therefore, Plaintiff’s request to amend the complaint should be

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granted.3

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III.

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RECOMMENDATIONS

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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Plaintiff’s motion to extend the discovery deadline construed as a motion to amend the
complaint (ECF No. 60) be granted; and

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The Clerk of Court be directed to file the second amended complaint, lodged on May
22, 2019 (ECF No. 67).

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days

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after being served with these Findings and Recommendations, the parties may file written objections

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with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” The parties are advised that failure to file objections within the specified time

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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

June 18, 2019
UNITED STATES MAGISTRATE JUDGE

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The time necessary for service and a response to the second amended complaint will likely require a further schedule
modification, but it is premature to address that matter now.

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