Peasley v. Spearman, et al

Filing 204

ORDER by Judge Lucy H. Koh Denying in part 197 Motion to Dismiss; Denying 197 Motion for Summary Judgment; Denying 203 Stipulation. (lhklc2, COURT STAFF) (Filed on 11/14/2017)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

DAVID SCOTT PEASLEY,
Plaintiff,

13
v.

14
15

WARDEN M. SPEARMAN, et al.,
Defendants.

16

Case No. 15-CV-01769-LHK
ORDER DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS
AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION
Re: Dkt. No. 197, 203

17
Plaintiff David Scott Peasley (“Plaintiff”), a California prisoner, filed an amended pro se

18
19

civil rights complaint pursuant to 42 U.S.C. § 1983. ECF No. 31. In the amended complaint,

20

Plaintiff alleged that defendants were deliberately indifferent to his serious medical needs by

21

failing to adequately treat his Type-I diabetes. Defendants Warden Spearman, Chief Medical

22

Officer Ellis, Dr. Bright, Officer Orozco, Officer Gibson, and Dr. Ahmed have filed a motion to

23

dismiss and for summary judgment.1 See ECF No. 197 (“Mot.”). For the reasons stated below,

24
25
26
27
28

1

Defendants’ motion also lists Officer Maria L. Lopez as a moving defendant, but Lopez cannot
be a moving defendant because she is currently in default. See ECF No. 136 at 2 (directing the
clerk to “enter the default of Lopez, pursuant to Rule 55(a)”); ECF No. 143 (“Clerk’s Notice of
Entry of Default as to Maria L. Lopez” pursuant to ECF No. 136).
1
Case No. 15-CV-01769-LHK
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION

1

the Court DENIES in part defendants’ motion to dismiss and motion for summary judgment.

2

I.

PROCEDURAL HISTORY
Plaintiff’s amended complaint raised 15 Counts. See Compl. After screening the amended

3
4

complaint, the Court dismissed Counts 10 and 15 in its order of service. ECF No. 53 at 4. On

5

July 18, 2016, defendants moved to dismiss Counts 1–9 and 11–13 based on res judicata, and also

6

moved for summary judgment on Counts 2 and 14. ECF No. 90. Plaintiff filed an opposition on

7

September 6, 2016, ECF No. 111, and defendants filed a reply on September 20, 2017. ECF No.

8

114.

9

On May 23, 2016, plaintiff filed a motion for summary judgment on Counts 6–9. ECF No.
76. On July 19, 2016, defendants filed an opposition, essentially parroting their res judicata

11
United States District Court
Northern District of California

10

argument on Counts 1–9 and 11–13, and summary judgment argument on Counts 2 and 14. ECF

12

No. 95. On July 29, 2016, plaintiff filed a motion for summary judgment on Counts 1–5 and 11–

13

14. ECF No. 97. On August 12, 2016, defendants filed a statement that their previously filed July

14

19, 2016 opposition should serve as an opposition to plaintiff’s second motion for summary

15

judgment as well. ECF No. 103. On August 29, 2016, plaintiff filed replies to defendants’

16

opposition. ECF Nos. 108 & 109.

17

On March 6, 2017, the Court denied defendants’ motion to dismiss Counts 1–9 and 11–13

18

based on res judicata, granted defendants’ motion for summary judgment on Counts 2 and 14, and

19

referred the matter to settlement proceedings. ECF No. 151. The Court informed the parties that

20

if settlement proceedings were unsuccessful, the Court would then resolve plaintiff’s motions for

21

summary judgment. Id. at 19. On May 11, 2017, the Court was informed that the parties were

22

unable to settle. See ECF No. 165. Thus, on September 26, 2017, the Court denied plaintiff’s

23

motions for summary judgment on Counts 1, 3–7, and 11–13. ECF No. 193 at 3. The Court

24

declined to address Counts 8 or 9 because those Counts “name [Maria L.] Lopez as the sole

25

defendant,” and at that time, Lopez had not entered an appearance in the case. Id. Further, the

26

Court ordered the Federal Pro Se Program to locate counsel for plaintiff. Id. at 14. Then, on

27
28

2
Case No. 15-CV-01769-LHK
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION

1

October 4, 2017, the Court appointed Joseph Farris and Michael Malecek of Arnold & Porter

2

Kaye Scholer, LLP as counsel for plaintiff pursuant to 28 U.S.C. § 1915(e)(1) and the Court’s

3

Federal Pro Bono Project guidelines. ECF No. 195.
On October 9, 2017, defendants filed the instant motion to dismiss and for summary

4
5

judgment. See Mot. Defendants moved to dismiss some of plaintiff’s claims on Eleventh

6

Amendment immunity and mootness grounds, and also moved for summary judgment on all

7

Counts. See id. Then, on October 30, 2017, the parties filed a stipulation and proposed order

8

“regarding hearing and briefing on defendants’ motion to dismiss and motion for summary

9

judgment.” ECF No. 203. In the stipulation, the parties requested “that the hearing set for January
18, 2018 on Defendants’ Motion to Dismiss and Motion for Summary Judgment be temporarily

11
United States District Court
Northern District of California

10

taken off calendar and all associated briefing deadlines vacated” so that the parties could “meet

12

and confer in advance of the Initial Case Management Conference and attempt to agree on a new

13

schedule for the hearing on the Motions and a briefing schedule” and “discuss possible settlement

14

of the matter.” Id. at 2.

15

II.

16
17
18
19

DISCUSSION
As explained above, in the instant motion, defendants move for both dismissal and

summary judgment. The Court considers each in turn.
A. Motion to Dismiss
In the instant motion, defendants move to dismiss some of plaintiff’s claims pursuant to

20

Federal Rule of Civil Procedure 12(b)(6). Specifically, defendants argue that (1) “all claims [for

21

damages] against Defendants in their official capacities should be dismissed with prejudice”

22

because such claims are barred by the Eleventh Amendment; and (2) all claims for equitable relief

23

against defendants should be dismissed because they were rendered moot by “Plaintiff’s transfer

24

from the Correctional Training Facility to Valley State Prison.” Mot. at 16. However, defendants

25

filed an earlier motion to dismiss pursuant to Rule 12 on July 18, 2016, ECF No. 90, and the Court

26

denied that motion on March 6, 2017. ECF No. 151.

27
28

3
Case No. 15-CV-01769-LHK
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION

1

Federal Rule of Civil Procedure 12(g)(2) states that “a party that makes a motion under

2

[Rule 12] must not make another motion under [Rule 12] raising a defense or objection that was

3

available to the party but omitted from its earlier motion.” The only exception to this rule that is

4

potentially applicable at this stage of the proceedings is that a party can move at any time to

5

dismiss for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(g)(2) (noting that Fed. R.

6

Civ. P. 12(h)(3) provides an exception to the rule); Fed R. Civ. P. 12(h)(3) (“If the court

7

determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

8

action.”).

9

In this case, defendants’ Eleventh Amendment immunity argument in the instant motion to
dismiss was “available to [defendants] but omitted from [defendants’] earlier” Rule 12 motion to

11
United States District Court
Northern District of California

10

dismiss. Fed. R. Civ. P. 12(g)(2). Further, although defendants’ Eleventh Amendment immunity

12

argument appears at first glance to challenge the Court’s subject matter jurisdiction over some of

13

plaintiff’s claims, the Ninth Circuit has stated that Eleventh Amendment immunity “does not

14

implicate a federal court’s subject matter jurisdiction in any ordinary sense” and that it “should be

15

treated as an affirmative defense.” Trichtler v. Cty. of Lake, 358 F.3d 1150, 1153–54 (9th Cir.

16

2004) (quoting ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993)). Thus,

17

because defendants’ Eleventh Amendment immunity argument in the instant motion does not

18

implicate the Court’s subject matter jurisdiction, and because defendants could have but failed to

19

raise their Eleventh Amendment argument in their previous motion to dismiss, Federal Rule of

20

Civil Procedure 12(g)(2) bars defendants from raising their Eleventh Amendment argument in the

21

instant motion. Accordingly, the Court DENIES defendants’ motion to dismiss plaintiff’s

22

damages claims against defendants in their official capacities on Eleventh Amendment immunity

23

grounds.

24

Defendants’ mootness argument, which is based on plaintiff’s transfer from the

25

Correctional Training Facility, Mot. at 16, was also arguably available to defendants at the time

26

they filed their earlier Rule 12 motion to dismiss. Specifically, defendants filed their earlier Rule

27
28

4
Case No. 15-CV-01769-LHK
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION

1

12 motion to dismiss on July 18, 2016, ECF No. 90, but plaintiff filed a “[n]otice to this Court and

2

all Parties that [plaintiff] is being relocated by way of a prison transfer” on December 14, 2015.

3

ECF No. 41. Nonetheless, because “mootness [] pertain[s] to a federal court’s subject-matter

4

jurisdiction under Article III, [it is] properly raised” in a Rule 12(h)(3) filing. White v. Lee, 227

5

F.3d 1214, 1242 (9th Cir. 2000). As a result, even if defendants’ mootness argument was

6

available when defendants filed their earlier Rule 12 motion to dismiss, Federal Rule of Civil

7

Procedure 12(g)(2) does not bar defendants from raising their mootness argument in the instant

8

motion. Accordingly, the Court does not deny defendants’ motion to dismiss on mootness

9

grounds.
B. Motion for Summary Judgment

11
United States District Court
Northern District of California

10

In the instant motion, defendants argue that they are entitled to summary judgment because

12

(1) plaintiff did not properly exhaust most of his claims; (2) there is no genuine issue of material

13

fact in this case, such that no reasonable jury would find that defendants were deliberately

14

indifferent to plaintiff’s medical needs; and (3) defendants are entitled to qualified immunity. See

15

Mot. at 19–24. However, defendants previously filed a motion for summary judgment on July 18,

16

2016, ECF No. 90, and the Court granted that motion on March 6, 2017. ECF No. 151.

17

“Although successive motions for summary judgment are not categorically barred, they are

18

generally disfavored in federal court.” AAA Flag & Banner Mfg. Co., Inc. v. Flynn Signs &

19

Graphics, Inc., 2010 WL 11463632, at *2 (C.D. Cal. Mar. 15, 2010); see also Allstate Fin. Corp.

20

v. Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961) (stating that federal courts “do not approve in

21

general the piecemeal consideration of successive motions for summary judgment because parties

22

ought to be held to the requirement that they present their strongest case for summary judgment

23

when the matter is first raised”). However, courts have discretion to consider a successive motion

24

for summary judgment in light of certain circumstances, such as the availability of new evidence

25

or “an expanded factual record,” Hoffman v. Tonnemacher, 593 F.3d 908, 911 (9th Cir. 2010), “an

26

intervening change in controlling law,” Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.

27
28

5
Case No. 15-CV-01769-LHK
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION

1

Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514

2

(9th Cir. 1987), or “the need to correct a clear error or prevent manifest injustice.” Id.
In this case, it is clear that the instant motion is not based on new evidence or an expanded

3
4

factual record, as all of the factual information upon which defendants rely could have been

5

obtained and included in defendants’ previous motion for summary judgment filed on July 18,

6

2016. Further, it does not appear, and defendants do not demonstrate, that the instant motion is

7

either based on an intervening change in controlling law or necessary to correct a clear error or

8

prevent manifest injustice. Thus, because defendants have not demonstrated good cause for why

9

the Court should consider defendants’ successive motion for summary judgment, the Court
DENIES the instant motion for summary judgment.

11
United States District Court
Northern District of California

10

III.

12

CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss “all claims [for damages] against

13

Defendants in their official capacities” on Eleventh Amendment immunity grounds and

14

defendants’ motion for summary judgment are DENIED.

15

However, the Court does not deny defendants’ motion to dismiss on mootness grounds.

16

Thus, plaintiff shall have until November 21, 2017 to file either an opposition to the mootness

17

portion of defendants’ motion to dismiss or a statement of non-opposition. Should plaintiff choose

18

to file an opposition, defendants shall have until November 30, 2017 to file a reply. The parties’

19

stipulation to vacate the briefing deadlines associated with the instant motion is therefore DENIED

20

as moot. ECF No. 203 at 2. Further, the Court DENIES the parties’ stipulation to remove the

21

January 18, 2018 hearing set for the instant motion from the calendar. Id.

22

IT IS SO ORDERED.

23

Dated: November 14, 2017

24
25

______________________________________
LUCY H. KOH
United States District Judge

26
27
28

6
Case No. 15-CV-01769-LHK
ORDER DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND FOR SUMMARY JUDGMENT;
ORDER DENYING STIPULATION