Stover v. Corrections Corporation of America et al

Filing 120

MEMORANDUM DECISION AND ORDER denying 80 Plaintiff's Motion for Extension of Time; denying 96 Plaintiff's Motion for Order Compelling Discovery; denying 101 Plaintiff's Motion for Leave of Court to Amend Complaint; denying 102 Plaintiff's Notice and Motion for Hearing, or Alternatively Notice and Motion for Telephonic Hearing; finding as moot 114 Plaintiff's Motion for Leave of Court to File Additional Motion. No motions for reconsideration shall be filed with respect to this Order. The Court adopts and hereby incorporates the Initial Review Order 16 into this Order. The stay of the dispositive motions deadline (contained in Dkt. 95 ), is VACATED. All dispositive motions with respect to Defendants CCA, ICC, Corizon, Kerr, Allen, Magon, Cardona, Siegert, Romwell, Kirkman, and Wamble-Fisher shall be filed no later than 30 days after entry of this Order. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JESSIKA ELLEN STOVER, aka JESSIE
E. STOVER,
Plaintiff,

Case No. 1:12-cv-00393-EJL
MEMORANDUM DECISION AND
ORDER

v.
CORRECTIONS CORPORATION OF
AMERICA, et al.,
Defendants.

Plaintiff, a prisoner in the custody of the Idaho Department of Correction (IDOC),
is proceeding pro se and in forma pauperis in this civil rights action. Now pending before
the Court are the following motions: (1) Plaintiff’s Motion for Extension of Time (Dkt.
80); (2) Plaintiff’s Motion for Order Compelling Discovery (Dkt. 96); (3) Plaintiff’s
Notice and Motion for Hearing or Alternatively Notice and Motion for Telephonic
Hearing (Dkt. 102) with respect to her motion to compel; (4) Plaintiff’s Motion for Leave
of Court to Amend Complaint (Dkt. 101); and (5) Plaintiff’s Motion for Leave of Court to
File Additional Motion (Dkt. 114).

MEMORANDUM DECISION AND ORDER 1

Having carefully reviewed the record, the Court finds that the parties have
adequately presented the facts and legal arguments in the briefs and record and that oral
argument is unnecessary. D. Idaho L. Civ. R. 7.1(d).1 Accordingly, the Court enters the
following Order.
BACKGROUND
Plaintiff filed the initial Complaint in this action on August 6, 2012. Plaintiff’s
claims arise from events that occurred while Plaintiff was incarcerated at a state-run
prison and at Idaho Correctional Center (ICC), a private prison then-operated by
Corrections Corporation of America (CCA) under contract with the IDOC. After Plaintiff
filed an Amended Complaint (Dkt. 10), the Court reviewed the Amended Complaint
under 28 U.S.C. § 1915A and allowed Plaintiff to proceed on a number of claims under
42 U.S.C. § 1983 against Defendants CCA, ICC, Corizon Medical Services (Corizon),
Kerr, Wengler, Allen, Magon, Cardona, Siegert, Romwell, Kirkman, and Wamble-Fisher.
(Dkt. 16.)
Prior to the deadline for motions to amend and to join parties, Plaintiff filed an
initial proposed second amended complaint, which the Court construed to include a
motion to amend. (Dkt. 70, 95 at 1.) Plaintiff later withdrew the proposed amendment.
(Dkt. 94.) The dispositive motions deadline has been stayed pending further notice by the
Court. (Dkt. 95.) The Court now turns to Plaintiff’s pending Motions.

1

For this reason, Plaintiff’s motion for a hearing on the motion to compel will be denied.

MEMORANDUM DECISION AND ORDER 2

PLAINTIFF’S MOTION FOR EXTENSION OF TIME
Plaintiff asks for an extension of time for two reasons. First, she asks for an
extension to file a reply brief in support of Plaintiff’s initial proposed second amended
complaint and to file a response to Defendants’ earlier motion to strike. (Dkt. 80.)
Because Plaintiff withdrew that proposed amendment (Dkt. 94) and because the motion to
strike has been deemed moot (see Dkt. 95 at 1-2), that portion of Plaintiff’s Motion for
Extension of Time is also moot.
Second, Plaintiff seeks to extend the discovery period. Discovery was set to close
in this case on April 17, 2014, after Plaintiff filed the Motion for Extension of Time.
Plaintiff has not identified any reason for an extension other than that Defendants have
allegedly not complied with their discovery obligations and that the discovery process is
burdensome given that she has to communicate with the multiple law firms representing
the multiple Defendants.
The first reason offered by Plaintiff, that Defendants are not appropriately
answering her discovery requests, is much too vague to justify extending the discovery
period. Further, as the Court explains below, Plaintiff’s Motion to Compel discovery will
be denied.
Plaintiff’s second complaint—that she is having difficulty with discovery given the
number of defendants and defense attorneys involved in this case—is merely a
consequence of her decision to file suit against so many Defendants. Plaintiff chose to

MEMORANDUM DECISION AND ORDER 3

structure her case in that manner, and she may not now complain that she has sued too
many defendants. Therefore, Plaintiff’s Motion for Extension of Time will be denied.
PLAINTIFF’S MOTION TO COMPEL
Plaintiff’s Motion to Compel must be denied because she filed it without first
making a good faith and reasonable effort to meet and confer with Defendants’ counsel to
work out any discovery disputes. Fed. R. Civ. P. 37(a)(1); D. Idaho Loc. Civ. R. 37.1.
Rather, in March 2014, Plaintiff sent Defendants a “Notice and Certification of Evasive
Discovery.” (Dkt. 96-10; Ex. F-1 to Plaintiff’s Motion to Compel.) This document stated
only that Defendants were being “evasive” in their discovery responses and that Plaintiff
“intend[ed] to seek a Motion to Compel Discover [sic].” (Id.) Plaintiff did not describe
which discovery responses Plaintiff found improper or incomplete, nor did she explain in
what manner Defendants’ responses were evasive. Thus, prior to the filing of the Motion
to Compel on April 7, 2014, Plaintiff had not satisfied her obligation to attempt to work
out her discovery disputes with Defendants’ counsel.
Plaintiff states in her reply brief that “[a]t the close of [her] deposition Plaintiff did
confer with each and every attorney, wherein complaining about each of them not
cooperating with her discovery request of relevant documents.” (Dkt. 100 at 1.) But this
supposed conference with Defendants’ counsel took place after Plaintiff filed her Motion
to Compel, which does not comply with the requirement that the moving party certifies
“at the time of filing the motion” to compel that the party has attempted to meet and
confer with the opposing party. D. Idaho Loc. Civ. R. 37.1 (emphasis added). Moreover,
MEMORANDUM DECISION AND ORDER 4

Plaintiff does not set forth precisely what she discussed with Defendants’ attorneys, and
her statements that she complained to them about Defendants’ lack of cooperation and
failure to timely respond to discovery are too generalized to constitute a reasonable effort
to meet and confer.2
PLAINTIFF’S MOTION TO AMEND
Plaintiff has also filed a motion to amend her Amended Complaint and a proposed
Second Amended Complaint. (Dkt. 101.) As noted above, this is the second time Plaintiff
has attempted to file a second amended complaint; Plaintiff withdrew her initial proposed
amendment before the Court could address it. (Dkt. 94 at 1, 95 at 1.)
Plaintiff submitted the instant Motion to Amend after the deadline for such
amendments, as set forth in the Court’s November 18, 2013 Scheduling Order (Dkt. 52),
had already passed. The deadline for motions to amend or to join parties was February 17
2014 (id., setting amendments deadline for 90 days after issuance of scheduling order),
but Plaintiff did not file the present motion to amend until May 13, 2014, at the earliest.
(Dkt. 101-1). See also Houston v. Lack, 487 U.S. 266, 270-71 (1988) (holding that a legal
document is deemed filed on the date a petitioner delivers it to the prison authorities for
filing by mail, rather than the date it is actually received by the clerk of court).

2

The Court notes that counsel for Corizon has disputed Plaintiff’s statement that she met
with “each and every” defense attorney after her deposition (Dkt. 96-10); counsel avers that
counsel did not have any conversation with Plaintiff about discovery at any time (see Dkt. 1031). The Court need not resolve this dispute, however, because even if Plaintiff did speak with
counsel for each Defendant, her conversation—as she describes it—does not satisfy the meetand-confer requirement.
MEMORANDUM DECISION AND ORDER 5

In asking the Court to grant her Motion to Amend, Plaintiff relies on the liberal
amendment principle found in Rule 15(a)(2) of the Federal Rules of Civil Procedure,
which states that a court “should freely give leave when justice so requires.” However,
because allowing an amendment at this stage of the proceedings would require a
modification of the Scheduling Order, the appropriate legal standard is that found in Rule
16. Under that rule, a court may modify a scheduling order “only for good cause.” Fed. R.
Civ. P. 16(b)(4). This good cause standard “primarily considers the diligence of the party
seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
Cir.1992). A court may modify the pretrial schedule if the deadline cannot reasonably be
met despite the diligence of the party seeking the modification. Id.
Plaintiff has not shown good cause for her failure to timely file the instant motion
to amend. Plaintiff obviously could have filed a motion to amend prior to the
deadline—she actually did file a proposed amendment. But it was Plaintiff’s own choice
to withdraw that pleading, and she must live with her litigation decisions. Plaintiff claims
that she did not want to withdraw her initial proposed second amended complaint but that
she did so “because of defects in which the defendants opposed, and Plaintiff saw as a
potential cause for it’s [sic] denial.” (Dkt. 115 at 1.) This explanation does not constitute
good cause; Plaintiff has not even attempted to explain why the instant motion to amend
and proposed amendment could not have been filed before the deadline.
For the foregoing reasons, Plaintiff’s Motion to Amend will be denied.

MEMORANDUM DECISION AND ORDER 6

ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Extension of Time (Dkt. 80) is DENIED.

2.

Plaintiff’s Motion for Order Compelling Discovery (Dkt. 96) is DENIED.

3.

Plaintiff’s Notice and Motion for Hearing, or Alternatively Notice and
Motion for Telephonic Hearing (Dkt. 102) on Plaintiff’s Motion for Order
Compelling Discovery is DENIED.

4.

Plaintiff’s Motion for Leave of Court to Amend Complaint (Dkt. 101) is
DENIED.

5.

Plaintiff’s Motion for Leave of Court to File Additional Motion (Dkt. 114)
is MOOT. This motion seeks only that Plaintiff be allowed to file a reply
brief (Dkt. 115) in support of her Motion to Amend. A reply brief is not a
motion, and the Court has considered all of Plaintiff’s submissions
(including Dkt. 115) in ruling on the instant motions.

6.

No motions for reconsideration shall be filed with respect to this Order.

7.

For the reasons explained in the Initial Review Order (Dkt. 16)—the
analysis in which the Court adopts and hereby incorporates into this
Order—the following Defendants are formally DISMISSED from this
action: Deputy Warden Perez, Tom Kessler, Shane Jepsen, Brian Johnson,
S. Mulen, Lieutenant Venem, Charlie Fletcher, Acel K. Thacker, Dr.
Lambert, Brent Reinke, Will Fruehling, Dam Bromly, Renae P. James,

MEMORANDUM DECISION AND ORDER 7

Johanna Smith, Randy Blades, Howard Yordy, Jay Cristensen, Garrett
Coburn, ISCI Employee Bobbolo, Ashley Dowell, Brian N. Fariss,
Psychiatric Technician Brackin, Richard Craig, Shane Evans, V. Greenland,
S. Williams, Sgt. Thodes, Sgt. Finley, Troy Black, C/O Shoen, C/O Stoph,
Rich Cartney, Connie Smock, Karen Walker, Scott Lossman, P.A. Valley,
Corizon Employee Richardson, Theresa Williams, L. Brown, CMS
Employee Groff, and John and Jane Does 1-200.
8.

The stay of the dispositive motions deadline (contained in Dkt. 95), is
VACATED. All dispositive motions with respect to Defendants CCA, ICC,
Corizon, Kerr, Allen, Magon, Cardona, Siegert, Romwell, Kirkman, and
Wamble-Fisher shall be filed no later than 30 days after entry of this
Order. No extensions of time to file dispositive motions shall be granted
absent extraordinary circumstances.

9.

Defendant Wengler has only recently appeared in this action. Because
Defendant Wengler might choose to file his own dispositive motion or to
join a dispositive motion filed by other Defendants, the Court will refrain at
this time from issuing a separate scheduling order governing the litigation
of Plaintiff’s claims against Defendant Wengler. If Defendant Wengler does
not choose to file or to join a dispositive motion, or if any such motion is
denied, the Court will then issue a scheduling order applicable to the claims
against Defendant Wengler.

MEMORANDUM DECISION AND ORDER 8

SO ORDERED.

DATED: June 24, 2014

Honorable Edward J. Lodge
U. S. District Judge

MEMORANDUM DECISION AND ORDER 9