Jayne v. Bosenko et al

Filing 199

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/26/16 RECOMMENDING that plaintiffs motion for reconsideration (ECF No. 191 ) be granted and that defendants VanBuskirk and Bosenko be reinstated; and Plaintiffs motion to modify the scheduling order (ECF No. 191 ) be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL AARON JAYNE,

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Plaintiff,

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No. 2:08-cv-2767-TLN-EFB P

v.

FINDINGS AND RECOMMENDATIONS

TOM BOSENKO, et al.,

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Defendants.

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Plaintiff is a federal prisoner proceeding through counsel in an action brought under 42

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U.S.C. § 1983. He requests reconsideration of the court’s order granting summary judgment to

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defendants Captain VanBuskirk and Sheriff Bosenko. He also moves to modify the scheduling

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order. For the reasons that follow, it is recommended that the motion for reconsideration be

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granted and the motion to modify the scheduling order be denied.

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I.

Motion for Reconsideration

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This action arises from incidents that occurred while plaintiff was a pretrial detainee at

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Shasta County Jail. Following the court’s June 19, 2014 order granting in part and denying in

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part defendants’ motion for summary judgment (ECF No. 138), the remaining claims are that

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defendant Ashmun violated plaintiff’s due process rights by placing him on a disciplinary diet for

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an extended period of time as punishment, and a claim against other defendants for violating

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plaintiff’s rights by listening to recordings of telephone communications between plaintiff and his

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criminal defense attorney. Included in that order was a grant of summary judgment to defendants
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VanBuskirk and Bosenko on plaintiff’s claims regarding the disciplinary diet. Of significance

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here is the conclusion in that order that because there was no evidence that either individual was

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“directly involved” in the decision to administer the diet to plaintiff, summary judgment should

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be granted to each. See ECF No. 138 at 13-14. Plaintiff now moves for reconsideration of that

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conclusion, citing evidence developed in subsequent discovery supporting the claim that both

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VanBuskirk and Bosenko were directly involved.

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Orders that adjudicate the rights and liabilities of fewer than all the parties may be revised

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at any time before the entry of a judgment. Fed. R. Civ. P. 54(b). “Reconsideration is

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appropriate if the district court (1) is presented with newly discovered evidence, (2) committed

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clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in

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controlling law.” School Dist. No. 1J v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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Further, Local Rule 230(j) requires that a motion for reconsideration state “what new or different

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facts or circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion,” and “why the facts or circumstances were

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not shown at the time of the prior motion.” E.D. Cal., Local Rule 230(j)(3)-(4).

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On April 15, 2015, this court reopened discovery on the disciplinary diet issue. ECF No.

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180. The recent discovery allowed plaintiff to obtain new evidence regarding the direct

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involvement of Captain VanBuskirk and Sheriff Bosenko in the decision to administer the

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disciplinary loaf diet to plaintiff. See, e.g., ECF No. 191-1, Ashmun Dep. at 97:12-15 (testifying

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that VanBuskirk was “very” involved in the decision to administer the disciplinary loaf to

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plaintiff); ECF No 191-1, Flores’ Dep., Ex. 3 (noting that Ashmun “cleared everything (including

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Sheriff) before invoking Discipline Diet.”); ECF No. 195-1, Flores’ Dep. at 57-58 (explaining

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that the Sheriff’s Office, including the Captain and the Sheriff, repeatedly put plaintiff on the

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disciplinary diet to improve plaintiff’s behavior, and confirming that Sheriff Bosenko was

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involved in the decision-making process). This information was not presented at the time of

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defendants’ motion for summary judgment because it was not known to plaintiff at the time he

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filed his opposition to defendants’ motion. Indeed, it plainly conflicts with the sworn statement

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that Bosenko submitted in support of his motion for summary judgment. See ECF No. 97-6, ¶ 3
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(claiming he “had no personal involvement” in the order to serve plaintiff with a disciplinary

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loaf). Reconsideration is appropriate in light of this newly discovered evidence. Moreover,

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reinstatement of defendants VanBuskirk and Bosenko will prevent the manifest injustice that

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could result if defendant Ashmun testifies as trial that she is not liable because she was merely

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following the orders of one or both of these supervisory defendants. Accordingly, it is

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recommended that plaintiff’s motion for reconsideration be granted, and that plaintiff’s

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disciplinary diet claims against defendants VanBuskirk and Bosenko be reinstated.

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II.

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Motion to Modify the Scheduling Order
Plaintiff moves to modify the scheduling order to allow him (1) to file a motion for partial

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summary judgment on liability, and (2) to designate an expert psychiatrist or psychologist as a

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damages expert. A scheduling order may be modified upon a showing of good cause. Fed. R.

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Civ. P. 16(b). Good cause exists when the moving party demonstrates he cannot meet the

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deadline despite exercising due diligence. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,

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609 (9th Cir. 1992).

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Pursuant to the scheduling and discovery order, plaintiff was required to designate any

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expert witnesses by September 27, 2010, and to file any dispositive motion by January 28, 2011.

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ECF No. 42. On April 15, 2015, the court granted plaintiff’s motion for leave to allow the late

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designation of an expert witness on the issue of liability. ECF No. 180. Plaintiff did not seek

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leave to designate a damages expert at that time. He claims his delay in this regard was in an

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effort “[t]o avoid prematurely . . . incurring unnecessary costs . . . .” ECF No. 191 at 8. This

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delay, however, is not justified. Any need for a damages expert could and should have been

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assessed at the same time plaintiff sought leave to designate an expert on liability. Good cause

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does not exist to further modify the deadline for designation of expert witnesses.

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As for the request to file a late dispositive motion, plaintiff essentially argues that he could

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not have filed the motion any sooner because he is a prisoner who only recently obtained counsel.

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See ECF No. 191. However, neither plaintiff’s prior pro se status as a prisoner nor the

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appointment of counsel on his behalf, constitutes good cause to amend the scheduling order.

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Further, even assuming some basis for a good cause finding, it appears that the proposed motion

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for partial summary judgment would be futile in any event. As the very thorough order on

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summary judgment demonstrates (ECF No. 138), there remain disputed issues of material fact

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that the proposed motion cannot resolve. The court emphasized this point at the April 15, 2015

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hearing on plaintiff’s initial motion for leave to file a late dispositive motion (ECF No. 172).

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Instead of denying the motion with prejudice, the court adopted a cautious approach and denied

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the motion without prejudice because of the chance that the reopening of discovery could reveal

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information sufficient to demonstrate the absence of a genuine dispute for trial. See ECF No.

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180. While the newly developed discovery warrants reconsideration of the summary judgment in

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favor of VanBuskirk and Bosenko, the new information presented by plaintiff has not shown the

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absence of a genuine dispute for trial.

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For these reasons, plaintiff’s motion to modify the scheduling order should be denied.
III.

Recommendation

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for reconsideration (ECF No. 191) be granted and that defendants

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VanBuskirk and Bosenko be reinstated; and

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2. Plaintiff’s motion to modify the scheduling order (ECF No. 191) be denied.

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These findings and recommendations are 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 days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 26, 2016.

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