Stewart v. Mr. Berkebile et al

Filing 90

ORDER ADOPTING 63 FINDINGS AND RECOMMENDATIONS in full; denying 60 Motion to Amend; denying 61 Motion to Serve Amended Complaint. Signed by Judge Brian Morris on 2/6/2018. Mailed to Stewart (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LAURENCE STEWART
Plaintiff,

CV-15-89-GF-BMM-JTJ

v.

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

MR. BERKEBILE, et al.,
Defendants.

Plaintiff Laurence Stewart (“Stewart”), a prisoner proceeding pro se, filed
his Complaint on October 10, 2015. (Doc. 2.) The Complaint alleges that
Defendants violated Stewart’s First Amendment rights by disciplining him for the
contents of a grievance. (Doc. 2 at 5.)
United States Magistrate Judge John Johnston issued a Scheduling Order on
May 19, 2017, setting a deadline of August 7, 2017, for amendment of the
pleadings. (Doc. 37 at 7.) Stewart amended his complaint on July 10, 2017. (Doc.
44.) Stewart’s Amended Complaint sought to dismiss Chief of Security Stewart
(“Officer Stewart”) from this action. (Doc. 44 at 1-2.)
1

Stewart filed the instant Motion to Amend his Complaint (Doc. 60) and a
Motion to Serve Amended Complaint and Direct Defendants to Answer (Doc. 61)
on November 16, 2017. Stewart’s Second Amended Complaint seeks to rename
Officer Stewart, and to add Warden Douglas Fender as a defendant. (Docs 60; 60-1
at 3.) Stewart claims that he discovered the involvement of Officer Stewart and
Warden Fender through discovery. (Doc. 60.)
Judge Johnston issued Findings and Recommendations in this matter on
December 18, 2017. (Doc. 63.) Judge Johnston recommended that the Court deny
Stewart’s Motion to Amend and Motion to Serve and Direct. (Doc. 63 at 5.)
The Court reviews de novo findings and recommendations to which
objections are made. 28 U.S.C. § 636(b)(1)(C). Portions of findings and
recommendations to which no party specifically objects are reviewed for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). Where a party's objections, however, constitute perfunctory
responses argued in an attempt to engage the district court in a relitigation of the
same arguments set forth in the original response, the Court will review for clear
error the applicable portions of the findings and recommendations. Rosling v.
Kirkegard, 2014 WL 693315 *3 (D. Mont. Feb. 21, 2014) (internal citations
omitted).

2

Stewart filed an objection. (Doc. 75.) The document “reiterates” claims
contained in the Motion to Amend (Doc. 60) and Plaintiff’s Reply to Defendants’
Memorandum in Opposition to Plaintiff’s Motion to Amend (Doc. 60). (Doc. 75 at
1.) Judge Johnston considered these arguments in making his recommendation to
the Court. Thus, the Court finds no specific objections that do not attempt to rehash
the same arguments, and will review the Findings and Recommendations for clear
error.
LEGAL STANDARD
A motion to amend is subject to Rule 15(a) of the Federal Rules of Civil
Procedure. Rule 15(a) instructs that a court “should freely give leave [to amend]
when justice so requires.” F. R. Civ. P. 15(a)(2). The Rule 15(a) standard ceases to
control once the court has filed a pretrial scheduling order pursuant to Federal Rule
of Civil Procedure 16. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607608 (9th Cir. 1992). Rule 16 requires that a party seeking leave to amend
demonstrate “good cause.” Fed. R. Civ. P. 16(b).
The good cause standard “primarily considers the diligence of the party
seeking amendment.” Johnson, 975 F.2d at 609. The moving party’s reasons for
seeking leave are of paramount concern. Id. Prejudice to the opposing party may
provide secondary grounds for denial. Id. A lack of prejudice to the opposing party
cannot establish good cause, however, absent a showing of diligence. Id.
3

DISCUSSION
Judge Johnston found that Stewart had failed to demonstrate good cause
because Stewart has failed to demonstrate diligence. (Doc. 63 at 4.)
Judge Johnston noted that Stewart’s original complaint makes reference to
“Chief Stewart and Assistant Warden” (now Warden Fender) indicating some
awareness of their involvement in these alleged events. The Court finds no clear
error in Judge Johnston’s reasoning that Stewart’s Motion to Amend lacks the
necessary details to demonstrate diligence. (Doc. 63 at 4-5.)
Stewart’s Reply (Doc. 64) and Objections (Doc. 75) similarly focus on
whether Officer Stewart and Warden Fender would be prejudiced by amendment.
The Court further finds no clear error in Judge Johnston’s finding that granting
Stewart leave to amend would prejudice Officer Stewart and Warden Fender, as
these individuals were not afforded the ability to take part in discovery, which is
now closed. (Doc. 63 at 5.) Even if amendment would not prejudice Officer
Stewart and Warden Fender, such a showing would not establish good cause.
Johnson, 975 F.2d at 609.
ORDER
Accordingly, IT IS ORDERED that Magistrate Judge Johnston’s Findings
and Recommendations (Doc. 63) is ADOPTED IN FULL.

4

Stewart’s Motion to Amend his Complaint (Doc. 60) and Motion to Serve
Amended Complaint and Direct Defendants to Answer (Doc. 61) are DENIED.
DATED this 6th day of February, 2018.

5