McCoy v. Eliason et al

Filing 44

MEMORANDUM DECISION AND ORDER. Defendant Dr. Eliason's Motion to Strike (Dkt. 41 ) is GRANTED. The Court will STRIKE McCoy's Amended Complaint (Dkt. 39 ).Plaintiff Garrett McCoy's Motion for Permission to Amend (Dkt. 43 ) is DENIED.Defendant Dr. Eliason's Motion for Summary Judgment (Dkt. 33 ) is GRANTED. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GARRETT M. McCOY,
Case No. 1:17-cv-00421-DCN
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
DR. ELIASON,
Defendant.

I. INTRODUCTION
Pending before the Court is Defendant Dr. Eliason’s Motion for Summary
Judgment (Dkt. 33), Dr. Eliason’s Motion to Strike (Dkt. 41), and Plaintiff Garrett
McCoy’s Motion to Amend (Dkt. 43). Having reviewed the record and briefs, the Court
finds that the facts and legal arguments are adequately presented. Accordingly, in the
interest of avoiding further delay, and because the Court finds that the decisional process
would not be significantly aided by oral argument, the Court will decide the Motions
without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii). For the reasons set forth
below, the Court finds good cause to GRANT Dr. Eliason’s Motion for Summary
Judgment and Motion to Strike, and to DENY McCoy’s Motion to Amend.
II. BACKGROUND
Plaintiff Garrett McCoy was previously incarcerated at the Ada County Jail. On
October 10, 2017, McCoy filed the instant pro se Complaint alleging various violations

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of 42 U.S.C. § 1983. Dkt. 3. In his Complaint, McCoy alleges that while incarcerated in
Ada County, Defendant Dr. Eliason violated his Eighth Amendment rights through
deliberate indifference to his serious medical needs. Specifically, McCoy alleges that Dr.
Eliason failed to prescribe him mental health medications after several brief evaluations.
McCoy claims that he faced an imminent danger of causing physical harm to himself
without the medications.
On February 3, 2017, United States District Court Judge Lodge issued an Initial
Review Order (1) permitting McCoy to proceed on his Eighth Amendment deliberate
indifference claims and (2) terminating Ada County Health Services as a party to the
case. Dkt. 14. Dr. Eliason moved for summary judgement on December 11, 2018. Dkt.
33.
Instead of responding to Dr. Eliason’s Motion for Summary Judgment, McCoy
filed an Amended Complaint on February 13, 2019. Dkt. 39. On February 27, 2019, Dr.
Eliason moved to Strike the Amended Complaint (Dkt. 41) for various reasons—
including that McCoy had not sought the Court’s permission to amend. In response,
McCoy filed a document entitled “Permission to Amended Complaint/Dispute
Facts/Cross Move for Summary Judgment Granted for the Plaintiff” on March 18, 2019.
(sic) Dkt. 43. The Court will address each motion in turn.
III. LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). The Court’s role at summary judgment is not “to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017) (citation omitted). In
considering a motion for summary judgment, the Court must “view[] the facts in the nonmoving party’s favor.” Id. To defeat a motion for summary judgment, the respondent
need only present evidence upon which “a reasonable juror drawing all inferences in
favor of the respondent could return a verdict in [his or her] favor.” Id. (citation omitted).
Accordingly, the Court must enter summary judgment if a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The respondent cannot simply rely on an unsworn affidavit or the
pleadings to defeat a motion for summary judgment; rather the respondent must set forth
the “specific facts,” supported by evidence, with “reasonable particularity” that precludes
summary judgment. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).
IV. DISCUSSION
Before addressing the motion for summary judgement, the Court must discuss Dr.
Eliason’s pending Motion to Strike and McCoy’s Motion for Permission to Amend.
A. Motion to Strike and Permission to Amend
After Dr. Eliason filed his motion for summary judgement on December 11, 2018,
McCoy filed an Amended Complaint on February 13, 2019. Dkt. 39. Dr. Eliason filed a

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Motion to Strike the Amended Complaint on February 27, 2019. Dkt. 41. For the reasons
stated below, the Court GRANTS the motion to strike.
Federal Rule of Civil Procedure 15(a) provides that, once a responsive pleading
has been served, a party may amend its pleading “only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so requires.”
Fed. R. Civ. P. 15(a)(2). However, when—as in this case—a party files a motion to
amend after the Court’s case management deadline to amend has passed, district courts in
the Ninth Circuit apply Federal Rule of Civil Procedure 16(b), followed by a Rule15(a)
analysis. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.
1992). Under Rule 16(b), the movant must demonstrate good cause to amend. Id. at 609.
In the present case, all motions to amend or to join parties were due no later than
August 22, 2018. See Dkt. 31 (original scheduling order). However, McCoy did not file
his Motion to Amend until February 27, 2019—over six months after the applicable
deadline. Accordingly, McCoy’s request for amendment is governed not by the liberal
provisions of Federal Rule of Civil Procedure 15(a), but instead by the more restrictive
provisions of Rule 16(b).
Here, McCoy has not demonstrated good cause to amend. First, McCoy did not
seek the Court’s permission to amend his Complaint as required. McCoy’s recent filing
which appears to seek permission to file an amended complaint (amongst other requested
relief) offers little support for his argument. McCoy simply reiterates the facts of his
Complaint—that Dr. Eliason was deliberately indifferent to his medical needs and that as

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a result, he has become suicidal—but provides no justification (or good cause) for
seeking to amend his Complaint at this late stage.
Second, discovery has long since closed in this case, and the dispositive motion
deadline has passed. Allowing McCoy to amend his Complaint at this stage would reopen
portions of discovery—something this Court is not willing to do. Accordingly, Dr.
Eliason’s Motion to Strike (Dkt. 41) is GRANTED and McCoy’s Motion to Amend (Dkt.
43) is DENIED.
B. Motion for Summary Judgement
In this case, the Court never reaches the merits of Dr. Eliason’s arguments in favor
of summary judgment, as procedural grounds exists for granting his Motion.
Dr. Eliason filed his Motion for Summary Judgement on December 11, 2018. On
January 23, 2018, the Clerk of the Court sent McCoy its standard Notice to pro se
litigants outlining what the Court required him to do. 1 The Notice explained what a
motion for summary judgment is, and how and when McCoy needed to respond to the
motion. The Notice also included the following warning:
You are warned that if you do not file your response opposing the motion
within 21 days (or such other time period set by the Court), the Court will
consider the facts provided by the moving party as undisputed and may
grant the motion based on the record before it, or it may dismiss your
entire case for failure to prosecute (abandonment of your case). See Local
Rule 7.1(e)(2); Fed. R. Civ. P. 41(b).
1

In Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), the Ninth Circuit held that prisoners
(and others) must receive fair notice of the requirements of Rule 56. In this Court—as in courts
across the nation—this notice is a standard form sent to all pro se litigants (including prisoners)
explaining Rule 56 and what they must do when a motion under Rule 56 has been filed.

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Dkt. 35, at 2 (emphasis in original). To date, McCoy has not filed anything with the Court
in response to the motion for summary judgment. McCoy could have requested more
time to respond as he had previously done (Dkt. 36), however, he failed to do so, and his
time to respond has passed. What’s more, McCoy’s Amended Complaint does not
operate as a valid response, and, even if it did, the Court has reviewed it, 2 and it does not
raise any new disputed material facts or set forth arguments opposing summary
judgement in favor of Dr. Eliason.
Idaho District Local Rule 7.1 outlines that:
In motions brought under Federal Rule of Civil Procedure 56, if the nonmoving party fails to timely file any response documents required to be filed,
such failure shall not be deemed a consent to the granting of said motion by
the Court. However, if a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact as required by
Federal Rule of Civil Procedure 56(c) or Local Rule 7.1(b)(1) or (c)(2), the
Court nonetheless may consider the uncontested material facts as undisputed
for purposes of consideration of the motion, and the Court may grant
summary judgment if the motion and supporting materials - including the
facts considered undisputed - show that the moving party is entitled to the
granting of the motion.

2

McCoy’s recent filing (Dkt. 43) appears to act as a motion to not only file an amended
complaint, but to use that amended complaint as a response to Dr. Eliason’s Motion for
Summary Judgment. The Court has already determined that this document does not provide
adequate good cause to justify the lately filed Amended Complaint. This aside, as the Court
noted, it has reviewed McCoy’s Amended Complaint as if it were a response to Dr. Eliason’s
Motion for Summary Judgment and finds no disputed facts. It is simply McCoy’s recitation of
what happened and his subjective belief that Dr. Eliason was indifferent to his needs. As this
Court has noted, however, a person’s subjective belief is not enough to support an Eighth
Amendment Claim. See Orr v. Valdez, No. 1:10-CV-00034-EJL, 2012 WL 761728, at *10 (D.
Idaho Mar. 8, 2012). Because no reasonable finder of fact could conclude from the record before
the Court that Dr. Eliason was deliberately indifferent to McCoy’s needs, his Amended
Complaint (even construed as a response) does not save his claims from summary judgment.

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Idaho Dist. Loc. R. 7.1(e)(2) (emphasis added). Accordingly, pursuant to this Court’s
Notice to McCoy, as well as Local Rule 7.1, his failure to timely respond to Dr. Eliason’s
Motion for Summary Judgment is deemed acquiescence to the facts alleged in the
motions, and the Court must grant judgment in Dr. Eliason’s favor.
V. ORDER
1. Defendant Dr. Eliason’s Motion to Strike (Dkt. 41) is GRANTED. The Court will
STRIKE McCoy’s Amended Complaint (Dkt. 39).
2. Plaintiff Garrett McCoy’s Motion for Permission to Amend (Dkt. 43) is DENIED.
3. Defendant Dr. Eliason’s Motion for Summary Judgment (Dkt. 33) is GRANTED.
4. The Court will enter a separate Judgment in accordance with Fed. R. Civ. P. 58.

DATED: April 22, 2019

_________________________
David C. Nye
U.S. District Court Judge

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